| ... |
| June 2016 |
| San Diego Education Report |
| May 2014 |
UCSD Sued for Transplanting Cancerous Kidney
(SAN DIEGO) -- A California man is suing the University of California-San
Diego Medical Center after receiving a cancerous kidney during a transplant
operation. Despite signing a document electing not to accept a kidney
from a donor with health problems, Austin Scalf claims UCSD surgeon,
Dr. Christopher Barry knowingly gave him a kidney with a cyst.
ABC News Radio
May 11, 2012
by Carmen Cox
(SAN DIEGO) -- A California man is suing the University of California-San
Diego Medical Center after receiving a cancerous kidney during a transplant
operation. Despite signing a document electing not to accept a kidney
from a donor with health problems, Austin Scalf claims UCSD surgeon,
Dr. Christopher Barry knowingly gave him a kidney with a cyst.
ABC News Radio
May 11, 2012
by Carmen Cox
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
| News, information and ideas about our education system, courts and health care by Maura Larkins |
"THE REGENTS IS NOT
SUBJECT TO
CLAIM-FILING
PROVISIONS OF THE
TORT CLAIMS ACT
"California Government
Code section 905.6
exempts The Regents of
the University of
California from
claim-filing provisions of
the Tort Claims Act. A
claimant who wishes to
file suit against The
Regents may serve OGC
as specified in section 1
above."
UCSD Health System Lawsuits
UCSD doctor William Taylor concealed
six-figure pay from medical device
company and used that company's
products on his patient; despite state law,
UCSD says he did nothing wrong
Dr. William Taylor, UCSD, implanted screws from a
company that paid him a six-figure income and in
which he owned hundreds of thousands of dollars in
stock options
I don't believe that Dr. Taylor intentionally made Ms.
Kitrosser suffer. I think he was simply blinded by his financial
interest. He couldn't believe the screws he had implanted (and heavily
invested in) could be causing harm. He had hundreds of thousands of reasons not to
believe it.
This does not explain, however, why Dr. Taylor kept his financial interests secret. I'll take a
stab at explaining that. Perhaps he had confidence in his own ability not to be influenced
by his large income from the medical device company and by the possibility that his
investment in the company would pay off grandly if the screws proved to be successful in
treating patients. He kept his financial dealings with the company secret because he didn't
trust others to have confidence in him.
And why doesn't UCSD crack down on its doctors who violate law and university policy in
this manner? Perhaps because the doctors who are tasked with enforcing the rules are
getting just as much money from outside companies as Dr. Anderson is.
Dr. William Taylor got his medical degree from UCLA, whose medical school seems have
particular problems with conflicts of interest.
"It took longer to uncover some critical details that Dr. William Taylor, the surgeon, had not
told the retired special education teacher or the university: He owned stock options worth
hundreds of thousands of dollars in the company selling the spinal devices and had also
collected six-figure annual fees from the same firm, the lawsuit said. Disclosure of such
corporate payments is required by state law and university policy.
"A lawyer for UCSD said Taylor did nothing wrong and denied that any patients were
harmed. But the university last year paid Kitrosser $1.75 million to settle the case."
UC system struggles with professors' outside earnings
Failing to report compensation from other sources leads to concerns about conflicts.
BY MELODY PETERSEN
OC Register
May 25, 2014
Doctors eventually solved the mystery of why Brenda Kitrosser suffered from
unrelenting pain after her back surgery at a University of California hospital in San
Diego.
A UCSD surgeon had implanted experimental screws and other hardware into her
back, promising this would relieve her pain. Instead the devices pressed on her
nerves endlessly, according to a lawsuit she filed later.
It took longer to uncover some critical details that Dr. William Taylor, the surgeon,
had not told the retired special education teacher or the university: He owned stock
options worth hundreds of thousands of dollars in the company selling the spinal
devices and had also collected six-figure annual fees from the same firm, the
lawsuit said.
Disclosure of such corporate payments is required by state law and university policy.
A lawyer for UCSD said Taylor did nothing wrong and denied that any patients were
harmed. But the university last year paid Kitrosser $1.75 million to settle the case.
The controversy over Taylor’s undisclosed compensation is not an isolated case.
The University of California has repeatedly failed to discipline medical professors
who did not disclose payments from drugmakers and medical companies.
Last month, after UCLA paid $10 million to settle a lawsuit that centered on
undisclosed corporate compensation, the non-profit group Consumer Watchdog
called on state Attorney General Kamala Harris to investigate how widespread the
unreported payments have become.
In a letter to Harris, the Santa Monica-based consumer group said that evidence
presented in the case had shown that the university’s policies were “either
inadequate or unenforced.”
“Patients in UC hospitals deserve the most reliable surgical devices and
medication,” the group wrote, “and they shouldn’t be treated as subjects in
expensive experiments.”
Officials at UCLA and UCI said they have recently increased efforts to make sure
professors comply with the rules. UCLA doubled its compliance staff and hired a
chief compliance officer. UCI’s chancellor directed all medical faculty to certify they
were in compliance with reporting requirements and not engaging in unauthorized
outside activities.
Those changes came after a series of undisclosed compensation cases involving
professors from across the UC system. In each case, the professors who received
the payments were involved in promoting or encouraging the use of a company’s
product at the same time they were treating patients. In all the cases except one, it
was people from outside the university who discovered the undisclosed payments.
• In a Los Angeles courtroom last month, Dr. Robert Pedowitz, the former chair of
UCLA’s orthopedic surgery department, testified that administrators retaliated
against him after he tried to get surgeons to report their corporate payments –
including one doctor who said he had received $250,000 from a device maker for
just 20 days of work. Just before closing arguments, UCLA agreed to pay Pedowitz
$10 million to settle the case. The university said administrators did nothing wrong.
• At UC Irvine, Dr. Thomas Ahlering received more than $100,000 since 2002 from
a company selling a surgical robot, but put most of that money in his nonprofit
foundation without disclosing it, the Register reported last year. University officials
say they have since required Ahlering to turn over $4,000 of that money to the
school.
• An investigation by U.S. Sen. Charles Grassley in 2009 found that UCLA
spinal surgeon Dr. Jeffrey Wang had failed to report almost a half million
dollars in compensation he had received from several companies. UCLA officials
say Wang was required to turn over an undisclosed portion of that to the university.
Although some of the professors were required to return a portion of their
undisclosed pay to the university, it’s not clear whether the universities
disciplined them in any other way.
In Oakland, UC administrators said they have an obligation to encourage faculty to
work with companies to develop new medicines and medical devices that can help
the public. And they pointed to the policies that the university has long had in place
to require faculty to disclose payments.
“We also recognize that more can be done to increase transparency and
oversight,” said Steve Montiel, a spokesperson at UC’s Office of the President, “and
we are reviewing our policies to determine how best to achieve these goals.”
Page 2 of 5
May 25, 2014
Consumer Watchdog has asked the state to consider having an independent
agency, rather than the university, police the professors’ corporate work.
SURGEONS DECLARE MUTINY
The court case at UCLA involved claims that the orthopedic surgery
department flouted the rules.
Pedowitz filed the lawsuit against UCLA in 2012, charging that administrators and
faculty had tried to drive him out of the university after he blew the whistle on the
unreported payments.
In court, Pedowitz recalled how professors in orthopedic surgery had mutinied after
he told them they needed to report their corporate incomes. Two dozen surgeons
signed a petition demanding he be let go.
UCLA had hired Pedowitz as the department’s new chair in 2009 – about the same
time Sen. Grassley uncovered $460,000 in hidden corporate payments to one of its
faculty members, Dr. Wang. Most of that money came from Medtronic, a device
maker with a growing spinal hardware business.
Pedowitz said he soon discovered that other surgeons had also failed to report their
payments, going back as far a decade. One of the professors, Dr. Arya Shamie,
had received $250,000 from Medtronic.
“I was very concerned,” Pedowitz said. “If faculty members are getting money from
companies, it can affect their choices when it comes to patient care.”
He said he had discussed his concerns with Dr. A. Eugene Washington, the dean of
UCLA’s medical school.
“I thought I had the dean’s support,” he said. “But I came to learn that they actually
didn’t want me to enforce the rules.”
Shamie testified in court that he didn’t report the money from Medtronic because
the previous department chair had advised him and other surgeons not to disclose
it.
One reason faculty members avoided reporting their corporate pay is that
the university keeps part of the payments.
The professors are paid as full-time employees and
time spent working for companies takes away from
their university hours.
Shamie testified that he received the money from Medtronic for consulting
about a spinal device called the X-Stop, which he was using in patients. He
had frequently spoken to doctors and the public about the device,
detailing its benefits.
Shamie referred questions from the Register to the campus’ spokesman.
Steve Ritea, UCLA’s associate director of communications, said that
Medtronic paid Shamie to train physicians. “Dr. Shamie has a unique teaching
expertise which was highly sought after in 2008 when he was paid for his time,”
Ritea said. “Neither patient care nor research were implicated or compromised."
page 3
Ritea said UCLA officials decided that Shamie had properly handled the Medtronic
money.
Wang now works at USC. He said in a court deposition in 2011 that UCLA officials
had not disciplined him for failing to report the Medtronic payments, but had instead
promoted him.
He declined to discuss the case further. “We’re not interested in commenting at this
time,” his assistant told the Register.
Several patients have sued Wang and the university. They say they were injured
after Wang used a Medtronic product called Infuse in a way that was not approved
by federal regulators.
Infuse, a genetically-engineered bone graft substitute, has been found, in rare
cases, to cause uncontrolled bone growth that leads to severe pain.
A Medtronic spokesperson said the company does not pay doctors to use its
products. Instead the company pays certain physicians for their expertise, including
for consulting on the development of products, to conduct clinical trials and to
educate and train other doctors about its products.
UCLA officials say Pedowitz’s claims had been repeatedly investigated. Those
probes found that neither the professors nor the administrators had broken any
laws, they said, and that no patients were harmed.
“UCLA adheres to stringent ethical and procedural guidelines and will continue to
do so,” Ritea said.
He said that UCLA had settled the case with Dr. Pedowitz “to end a prolonged
conflict and permit UCLA Health Sciences to refocus on its primary missions of
teaching, research, patient care and community engagement.”
CONCERNS ABOUT BIAS
The public looks to academics to provide a clear-eyed, independent view. But
studies have found they can be influenced by corporate pay.
“We know accepting gifts and money from drug companies changes doctors’
behaviors,” said Eric Campbell, a professor at Harvard Medical School who has
studied financial conflicts of interest. “That’s why the companies spend the money.”
Campbell offered a baseball analogy. Imagine a game between
the Yankees and the Red Sox, he said, where in the preceding
weeks, the Yankees had treated the umpires to lunch every day,
where they talked about how to call strikes.
“No reasonable person would assume that scenario would not
change what umpires do,” Campbell said.
The corporate money becomes an even greater concern,
Campbell said, when the academics are leading clinical trials
where they can make decisions that significantly change
published results.
Both Shamie and Wang led research involving Medtronic products and published
the results in scientific journals – work that Pedowitz said factored into his push to
get the UCLA surgeons to disclose the payments.
“If the research is somehow tainted,” Pedowitz said, “it affects the behavior of
physicians all over the world.”
Ritea said other professors had reviewed the two professors’ research and found
no problems.
“Research is overseen by independent committees to ensure that activities meet
the high standards patients should expect,” he added.
Some other universities have gone further to ensure professors disclose their
corporate ties. For example, Stanford requires professors to list the companies they
consult for on the university’s website.
ADMINISTRATORS’ CORPORATE JOBS
It’s not just UC professors who receive money from companies.
Some university administrators – including those in charge of
enforcing policies – also have lucrative side jobs with industry.
That corporate work is allowed as long as it does not affect their
ability to do their university jobs. But critics say that outside work
may serve as a disincentive for administrators to enforce the rules.
Last month, University of Pittsburgh researchers questioned cases where a medical
school’s dean sits on the board of a drug company in a report in the Journal of the
American Medical Association.
The researchers mentioned drug and device maker Johnson & Johnson’s
relationship with UCLA’s dean as well as 18 other companies that have appointed
university leaders to corporate positions. The deans’ responsibilities to the
companies could easily conflict with their university duties, the researchers said.
Washington, the dean of UCLA’s medical school, received $261,000 last year to sit
on Johnson & Johnson’s board, according to the company’s public filings.
The practice of top university administrators accepting large stipends for sitting on
a corporate board or as a corporate consultant is widespread, and is not limited to
drug companies.
Marye Anne Fox, who was UCSD’s chancellor from 2004 to 2012, sat on
several corporate boards, including that of W.R. Grace. The chemical giant
has been repeatedly involved in high-profile environmental incidents,
including toxic asbestos contamination that polluted the town of Libby,
Montana.
At UCI, Chancellor Michael Drake received $24,000 in 2012 for sitting on the
health policy advisory board of Gilead Sciences, a drug company. He
received another $114,000 as a director of Bank of the West, his university
disclosures show.
John Murray, a UCI spokesperson, said Drake’s outside compensation had no
effect on his enforcement of the rules or on university operations. He noted that
Drake, in August, had required all medical faculty to attest that they were following
the rules on outside compensation.
University officials say such work by administrators can benefit both the school and
the company. For example, Ritea said, Washington’s work for Johnson & Johnson
provides the company with a perspective on the needs of physicians who treat
patients, while giving him experience with top business leaders so he can better
manage UCLA’s medical operations.
"Outside income should not in and of itself be a concern for patients or the general
public,” Ritea said.
Campbell, the Harvard expert on medical ethics, said it would be OK for
academic leaders to serve on corporate boards if they weren’t paid.
“I think they should do it free of charge,” he said. “That removes the conflict of
interest.”
JURY VERDICT
The unsuccessful back surgery on Brenda Kitrosser, the retired teacher, ended up
costing both the university where the doctor worked and the medical device maker
he worked with.
Last year, a civil jury in San Diego Superior Court issued a verdict against
NuVasive, finding that the company and UCSD’s Taylor had conspired to
intentionally mislead patients considering spine surgery.
The jury ordered the company to pay $3.1 million to Kitrosser. A judge later ruled
that the $1.75 million that UCSD had agreed to pay could offset the verdict against
NuVasive. The company was also ordered to pay court costs. NuVasive has
appealed the verdict.
Neither Taylor nor a NuVasive spokesperson responded to phone calls or emails
seeking comment. Thomas Lotz, a lawyer who represents UCSD, said Taylor never
got the chance to fully tell his story in court. Taylor has not exercised the stock
options that were revealed by the lawsuits, he said.
UCSD settled the case, Lotz said, to avoid a lengthy legal fight.
Robert Vaage, Kitrosser’s lawyer, said he had repeatedly informed UCSD
about Taylor’s failure to report the payments from NuVasive. “They haven’t
punished him at all,” he said. “In fact, they’ve promoted him.”
Carr, the UCSD spokesperson, disputed that, but said she could not explain further
because personnel matters must be kept private.
After the state Fair Political Practices Commission fined Taylor
$12,000 in 2011 for failing to report his compensation from
NuVasive as required by state law, UCSD officials called it “an
administrative error.” They said then that they planned no further
action against him, according to a report in The Guardian, the
campus newspaper.
Dr. James Doty, a clinical professor at Stanford, testified that
Kitrosser should not have had the surgery that Taylor performed
in 2008 because she suffered from a high-degree of scoliosis, an
abnormal curvature of the spine. Doty said that Taylor had an
ethical duty to tell her about his financial relationship with
NuVasive.
“It’s a big problem,” Vaage said of the large payments received by Taylor and other
surgeons. “It’s something the public needs to know about.”
six-figure pay from medical device
company and used that company's
products on his patient; despite state law,
UCSD says he did nothing wrong
Dr. William Taylor, UCSD, implanted screws from a
company that paid him a six-figure income and in
which he owned hundreds of thousands of dollars in
stock options
I don't believe that Dr. Taylor intentionally made Ms.
Kitrosser suffer. I think he was simply blinded by his financial
interest. He couldn't believe the screws he had implanted (and heavily
invested in) could be causing harm. He had hundreds of thousands of reasons not to
believe it.
This does not explain, however, why Dr. Taylor kept his financial interests secret. I'll take a
stab at explaining that. Perhaps he had confidence in his own ability not to be influenced
by his large income from the medical device company and by the possibility that his
investment in the company would pay off grandly if the screws proved to be successful in
treating patients. He kept his financial dealings with the company secret because he didn't
trust others to have confidence in him.
And why doesn't UCSD crack down on its doctors who violate law and university policy in
this manner? Perhaps because the doctors who are tasked with enforcing the rules are
getting just as much money from outside companies as Dr. Anderson is.
Dr. William Taylor got his medical degree from UCLA, whose medical school seems have
particular problems with conflicts of interest.
"It took longer to uncover some critical details that Dr. William Taylor, the surgeon, had not
told the retired special education teacher or the university: He owned stock options worth
hundreds of thousands of dollars in the company selling the spinal devices and had also
collected six-figure annual fees from the same firm, the lawsuit said. Disclosure of such
corporate payments is required by state law and university policy.
"A lawyer for UCSD said Taylor did nothing wrong and denied that any patients were
harmed. But the university last year paid Kitrosser $1.75 million to settle the case."
UC system struggles with professors' outside earnings
Failing to report compensation from other sources leads to concerns about conflicts.
BY MELODY PETERSEN
OC Register
May 25, 2014
Doctors eventually solved the mystery of why Brenda Kitrosser suffered from
unrelenting pain after her back surgery at a University of California hospital in San
Diego.
A UCSD surgeon had implanted experimental screws and other hardware into her
back, promising this would relieve her pain. Instead the devices pressed on her
nerves endlessly, according to a lawsuit she filed later.
It took longer to uncover some critical details that Dr. William Taylor, the surgeon,
had not told the retired special education teacher or the university: He owned stock
options worth hundreds of thousands of dollars in the company selling the spinal
devices and had also collected six-figure annual fees from the same firm, the
lawsuit said.
Disclosure of such corporate payments is required by state law and university policy.
A lawyer for UCSD said Taylor did nothing wrong and denied that any patients were
harmed. But the university last year paid Kitrosser $1.75 million to settle the case.
The controversy over Taylor’s undisclosed compensation is not an isolated case.
The University of California has repeatedly failed to discipline medical professors
who did not disclose payments from drugmakers and medical companies.
Last month, after UCLA paid $10 million to settle a lawsuit that centered on
undisclosed corporate compensation, the non-profit group Consumer Watchdog
called on state Attorney General Kamala Harris to investigate how widespread the
unreported payments have become.
In a letter to Harris, the Santa Monica-based consumer group said that evidence
presented in the case had shown that the university’s policies were “either
inadequate or unenforced.”
“Patients in UC hospitals deserve the most reliable surgical devices and
medication,” the group wrote, “and they shouldn’t be treated as subjects in
expensive experiments.”
Officials at UCLA and UCI said they have recently increased efforts to make sure
professors comply with the rules. UCLA doubled its compliance staff and hired a
chief compliance officer. UCI’s chancellor directed all medical faculty to certify they
were in compliance with reporting requirements and not engaging in unauthorized
outside activities.
Those changes came after a series of undisclosed compensation cases involving
professors from across the UC system. In each case, the professors who received
the payments were involved in promoting or encouraging the use of a company’s
product at the same time they were treating patients. In all the cases except one, it
was people from outside the university who discovered the undisclosed payments.
• In a Los Angeles courtroom last month, Dr. Robert Pedowitz, the former chair of
UCLA’s orthopedic surgery department, testified that administrators retaliated
against him after he tried to get surgeons to report their corporate payments –
including one doctor who said he had received $250,000 from a device maker for
just 20 days of work. Just before closing arguments, UCLA agreed to pay Pedowitz
$10 million to settle the case. The university said administrators did nothing wrong.
• At UC Irvine, Dr. Thomas Ahlering received more than $100,000 since 2002 from
a company selling a surgical robot, but put most of that money in his nonprofit
foundation without disclosing it, the Register reported last year. University officials
say they have since required Ahlering to turn over $4,000 of that money to the
school.
• An investigation by U.S. Sen. Charles Grassley in 2009 found that UCLA
spinal surgeon Dr. Jeffrey Wang had failed to report almost a half million
dollars in compensation he had received from several companies. UCLA officials
say Wang was required to turn over an undisclosed portion of that to the university.
Although some of the professors were required to return a portion of their
undisclosed pay to the university, it’s not clear whether the universities
disciplined them in any other way.
In Oakland, UC administrators said they have an obligation to encourage faculty to
work with companies to develop new medicines and medical devices that can help
the public. And they pointed to the policies that the university has long had in place
to require faculty to disclose payments.
“We also recognize that more can be done to increase transparency and
oversight,” said Steve Montiel, a spokesperson at UC’s Office of the President, “and
we are reviewing our policies to determine how best to achieve these goals.”
Page 2 of 5
May 25, 2014
Consumer Watchdog has asked the state to consider having an independent
agency, rather than the university, police the professors’ corporate work.
SURGEONS DECLARE MUTINY
The court case at UCLA involved claims that the orthopedic surgery
department flouted the rules.
Pedowitz filed the lawsuit against UCLA in 2012, charging that administrators and
faculty had tried to drive him out of the university after he blew the whistle on the
unreported payments.
In court, Pedowitz recalled how professors in orthopedic surgery had mutinied after
he told them they needed to report their corporate incomes. Two dozen surgeons
signed a petition demanding he be let go.
UCLA had hired Pedowitz as the department’s new chair in 2009 – about the same
time Sen. Grassley uncovered $460,000 in hidden corporate payments to one of its
faculty members, Dr. Wang. Most of that money came from Medtronic, a device
maker with a growing spinal hardware business.
Pedowitz said he soon discovered that other surgeons had also failed to report their
payments, going back as far a decade. One of the professors, Dr. Arya Shamie,
had received $250,000 from Medtronic.
“I was very concerned,” Pedowitz said. “If faculty members are getting money from
companies, it can affect their choices when it comes to patient care.”
He said he had discussed his concerns with Dr. A. Eugene Washington, the dean of
UCLA’s medical school.
“I thought I had the dean’s support,” he said. “But I came to learn that they actually
didn’t want me to enforce the rules.”
Shamie testified in court that he didn’t report the money from Medtronic because
the previous department chair had advised him and other surgeons not to disclose
it.
One reason faculty members avoided reporting their corporate pay is that
the university keeps part of the payments.
The professors are paid as full-time employees and
time spent working for companies takes away from
their university hours.
Shamie testified that he received the money from Medtronic for consulting
about a spinal device called the X-Stop, which he was using in patients. He
had frequently spoken to doctors and the public about the device,
detailing its benefits.
Shamie referred questions from the Register to the campus’ spokesman.
Steve Ritea, UCLA’s associate director of communications, said that
Medtronic paid Shamie to train physicians. “Dr. Shamie has a unique teaching
expertise which was highly sought after in 2008 when he was paid for his time,”
Ritea said. “Neither patient care nor research were implicated or compromised."
page 3
Ritea said UCLA officials decided that Shamie had properly handled the Medtronic
money.
Wang now works at USC. He said in a court deposition in 2011 that UCLA officials
had not disciplined him for failing to report the Medtronic payments, but had instead
promoted him.
He declined to discuss the case further. “We’re not interested in commenting at this
time,” his assistant told the Register.
Several patients have sued Wang and the university. They say they were injured
after Wang used a Medtronic product called Infuse in a way that was not approved
by federal regulators.
Infuse, a genetically-engineered bone graft substitute, has been found, in rare
cases, to cause uncontrolled bone growth that leads to severe pain.
A Medtronic spokesperson said the company does not pay doctors to use its
products. Instead the company pays certain physicians for their expertise, including
for consulting on the development of products, to conduct clinical trials and to
educate and train other doctors about its products.
UCLA officials say Pedowitz’s claims had been repeatedly investigated. Those
probes found that neither the professors nor the administrators had broken any
laws, they said, and that no patients were harmed.
“UCLA adheres to stringent ethical and procedural guidelines and will continue to
do so,” Ritea said.
He said that UCLA had settled the case with Dr. Pedowitz “to end a prolonged
conflict and permit UCLA Health Sciences to refocus on its primary missions of
teaching, research, patient care and community engagement.”
CONCERNS ABOUT BIAS
The public looks to academics to provide a clear-eyed, independent view. But
studies have found they can be influenced by corporate pay.
“We know accepting gifts and money from drug companies changes doctors’
behaviors,” said Eric Campbell, a professor at Harvard Medical School who has
studied financial conflicts of interest. “That’s why the companies spend the money.”
Campbell offered a baseball analogy. Imagine a game between
the Yankees and the Red Sox, he said, where in the preceding
weeks, the Yankees had treated the umpires to lunch every day,
where they talked about how to call strikes.
“No reasonable person would assume that scenario would not
change what umpires do,” Campbell said.
The corporate money becomes an even greater concern,
Campbell said, when the academics are leading clinical trials
where they can make decisions that significantly change
published results.
Both Shamie and Wang led research involving Medtronic products and published
the results in scientific journals – work that Pedowitz said factored into his push to
get the UCLA surgeons to disclose the payments.
“If the research is somehow tainted,” Pedowitz said, “it affects the behavior of
physicians all over the world.”
Ritea said other professors had reviewed the two professors’ research and found
no problems.
“Research is overseen by independent committees to ensure that activities meet
the high standards patients should expect,” he added.
Some other universities have gone further to ensure professors disclose their
corporate ties. For example, Stanford requires professors to list the companies they
consult for on the university’s website.
ADMINISTRATORS’ CORPORATE JOBS
It’s not just UC professors who receive money from companies.
Some university administrators – including those in charge of
enforcing policies – also have lucrative side jobs with industry.
That corporate work is allowed as long as it does not affect their
ability to do their university jobs. But critics say that outside work
may serve as a disincentive for administrators to enforce the rules.
Last month, University of Pittsburgh researchers questioned cases where a medical
school’s dean sits on the board of a drug company in a report in the Journal of the
American Medical Association.
The researchers mentioned drug and device maker Johnson & Johnson’s
relationship with UCLA’s dean as well as 18 other companies that have appointed
university leaders to corporate positions. The deans’ responsibilities to the
companies could easily conflict with their university duties, the researchers said.
Washington, the dean of UCLA’s medical school, received $261,000 last year to sit
on Johnson & Johnson’s board, according to the company’s public filings.
The practice of top university administrators accepting large stipends for sitting on
a corporate board or as a corporate consultant is widespread, and is not limited to
drug companies.
Marye Anne Fox, who was UCSD’s chancellor from 2004 to 2012, sat on
several corporate boards, including that of W.R. Grace. The chemical giant
has been repeatedly involved in high-profile environmental incidents,
including toxic asbestos contamination that polluted the town of Libby,
Montana.
At UCI, Chancellor Michael Drake received $24,000 in 2012 for sitting on the
health policy advisory board of Gilead Sciences, a drug company. He
received another $114,000 as a director of Bank of the West, his university
disclosures show.
John Murray, a UCI spokesperson, said Drake’s outside compensation had no
effect on his enforcement of the rules or on university operations. He noted that
Drake, in August, had required all medical faculty to attest that they were following
the rules on outside compensation.
University officials say such work by administrators can benefit both the school and
the company. For example, Ritea said, Washington’s work for Johnson & Johnson
provides the company with a perspective on the needs of physicians who treat
patients, while giving him experience with top business leaders so he can better
manage UCLA’s medical operations.
"Outside income should not in and of itself be a concern for patients or the general
public,” Ritea said.
Campbell, the Harvard expert on medical ethics, said it would be OK for
academic leaders to serve on corporate boards if they weren’t paid.
“I think they should do it free of charge,” he said. “That removes the conflict of
interest.”
JURY VERDICT
The unsuccessful back surgery on Brenda Kitrosser, the retired teacher, ended up
costing both the university where the doctor worked and the medical device maker
he worked with.
Last year, a civil jury in San Diego Superior Court issued a verdict against
NuVasive, finding that the company and UCSD’s Taylor had conspired to
intentionally mislead patients considering spine surgery.
The jury ordered the company to pay $3.1 million to Kitrosser. A judge later ruled
that the $1.75 million that UCSD had agreed to pay could offset the verdict against
NuVasive. The company was also ordered to pay court costs. NuVasive has
appealed the verdict.
Neither Taylor nor a NuVasive spokesperson responded to phone calls or emails
seeking comment. Thomas Lotz, a lawyer who represents UCSD, said Taylor never
got the chance to fully tell his story in court. Taylor has not exercised the stock
options that were revealed by the lawsuits, he said.
UCSD settled the case, Lotz said, to avoid a lengthy legal fight.
Robert Vaage, Kitrosser’s lawyer, said he had repeatedly informed UCSD
about Taylor’s failure to report the payments from NuVasive. “They haven’t
punished him at all,” he said. “In fact, they’ve promoted him.”
Carr, the UCSD spokesperson, disputed that, but said she could not explain further
because personnel matters must be kept private.
After the state Fair Political Practices Commission fined Taylor
$12,000 in 2011 for failing to report his compensation from
NuVasive as required by state law, UCSD officials called it “an
administrative error.” They said then that they planned no further
action against him, according to a report in The Guardian, the
campus newspaper.
Dr. James Doty, a clinical professor at Stanford, testified that
Kitrosser should not have had the surgery that Taylor performed
in 2008 because she suffered from a high-degree of scoliosis, an
abnormal curvature of the spine. Doty said that Taylor had an
ethical duty to tell her about his financial relationship with
NuVasive.
“It’s a big problem,” Vaage said of the large payments received by Taylor and other
surgeons. “It’s something the public needs to know about.”
UCSD surgeon fined
over research
payments
By Tanya Sierra
Jan. 19, 2011
Dr. William Taylor FPPC fine
Download .PDF
A University of California San
Diego neurosurgeon and
professor has been fined
$12,000 by the state’s Fair
Political Practices Commission
for failing to report his economic
ties to a company that was
funding his research project.
Dr. William Taylor, a specialist in
minimally invasive spinal
surgery at the UCSD Medical
Center, did not disclose
that medical device
company NuVasive
Inc. was providing
funding for his
research projects.
Taylor could not be reached for
comment Wednesday. To the
FPPC, he indicated he did not
intend to keep information from
the public and did not
deliberately omit his income
from NuVasive on his state-
mandated statements of
economic interest. He later took
corrective action including
discontinuing his participation in
two projects.
Taylor was the principal
investigator on four medical
research projects that were
being funded by NuVasive. In
one case the company, based
in Sorrento Valley, was
providing $16,821 for Taylor’s
project. Three other projects
received an undisclosed amount.
Taylor taught workshops on
behalf of the company and
provided services as a
consultant regarding product
development.
He was quoted in The San
Diego Union-Tribune last
year as a specialist talking
about the advantages of the
NuVasive system.
over research
payments
By Tanya Sierra
Jan. 19, 2011
Dr. William Taylor FPPC fine
Download .PDF
A University of California San
Diego neurosurgeon and
professor has been fined
$12,000 by the state’s Fair
Political Practices Commission
for failing to report his economic
ties to a company that was
funding his research project.
Dr. William Taylor, a specialist in
minimally invasive spinal
surgery at the UCSD Medical
Center, did not disclose
that medical device
company NuVasive
Inc. was providing
funding for his
research projects.
Taylor could not be reached for
comment Wednesday. To the
FPPC, he indicated he did not
intend to keep information from
the public and did not
deliberately omit his income
from NuVasive on his state-
mandated statements of
economic interest. He later took
corrective action including
discontinuing his participation in
two projects.
Taylor was the principal
investigator on four medical
research projects that were
being funded by NuVasive. In
one case the company, based
in Sorrento Valley, was
providing $16,821 for Taylor’s
project. Three other projects
received an undisclosed amount.
Taylor taught workshops on
behalf of the company and
provided services as a
consultant regarding product
development.
He was quoted in The San
Diego Union-Tribune last
year as a specialist talking
about the advantages of the
NuVasive system.
The following case is reminiscent of the Dr. Robert Pedowitz case at UCLA.
UCLA settled with Dr. Pedowitz for $10 million.
CERTIFIED FOR PUBLICATION
Filed 1/18/08
Certified for publication 2/11/08
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT, DIVISION ONE
STATE OF CALIFORNIA
LARRY BRAND,
Plaintiff and Appellant,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA et al.,
Defendants and Respondents.
D049350 [Click HERE to see copy with footnotes.]
(Super. Ct. No. GIC848844)
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Reversed in part and affirmed in part.
Larry Brand appeals from a judgment entered after the trial court sustained the
demurrer of defendants the Regents of the University of California (the Regents),
Alan Paau, John Woods, Eduardo Macagno, Michael Melman and Daniel Wyman
(collectively, defendants) to Brand's lawsuit. The lawsuit alleged that defendants
unlawfully retaliated against him for making disclosures protected by the California
Whistleblower Protection Act (Gov. Code, § 8547 et seq.).
We conclude that except with respect to the third cause of action against Melman
(and the second cause of action, which is not at issue in this appeal), the trial court
erred in sustaining the demurer. Accordingly, we reverse the judgment in part.
I FACTUAL AND PROCEDURAL BACKGROUND
A. Brand's Whistleblowing Activity and Complaints of Retaliation
According to the operative second amended complaint in this action (the complaint),
Brand was employed by the Regents as a senior licensing officer in the Technology
Transfer and Intellectual Property Service office (TTIPS) at the campus of the
University of California, San Diego (UCSD). Brand alleges that he discovered
"serious and unlawful fraud and misappropriation of funds," self-dealing
and other conflicts of interest involving his supervisor, Paau, and then,
beginning in March 2001, he "made a number of internal reports aimed at
alerting UC management to the state of affairs." According to Brand, his
disclosures became known to Paau, who, along with Woods, Melman,
Wyman and Macagno, retaliated against Brand.*3
[*3 According to the complaint, Woods, Melman, Wyman and Macagno are all
employees of the Regents. The complaint does not fully explain their employment
positions, but from information in the record it appears that during the relevant time
frame (1) Woods was the UCSD Vice Chancellor, Resource Management; (2)
Melman was the UCSD Director, Labor Relations; (3) Wyman was a Labor
Advocate, Human Resources Labor Relations at UCSD; and (4) Macagno was a
dean in UCSD's Biology Department. ]
Brand claims that the retaliation included withholding salary increases, giving him
unjustified negative performance reviews, maintaining a hostile work environment,
taking work away from him, threatening him with termination, and ultimately
terminating him in June 2003.
In response to the perceived retaliation, Brand filed several internal written
complaints with UCSD's locally designated officer (LDO) under the University of
California Policy for Protection of Whistleblowers from Retaliation and Guidelines for
Reviewing Retaliation Complaints (UC Whistleblower Protection Policy). In each of
his internal complaints, Brand complained that he was retaliated against in violation
of the California Whistleblower Protection Act (§ 8547 et seq.).
Brand's first internal complaints were filed on September 18 and September 22,
2002 (the September 2002 grievances) and focused on unsatisfactory performance
evaluations, the loss of a salary increase and pressure to offer his resignation. The
September 2002 grievances were addressed through a two-step internal process
premised on the procedures set forth in the UC Whistleblower Protection Policy and
policy 70 of the University of California's Personnel Policy for Staff Members (PPSM
70). At the first step of the procedure, Vice Chancellor Woods responded with a
written denial on October 30, 2002. At the second step, in response to Brand's
request, a factfinding meeting was held in February 2003. In April 2003, the fact
finder issued a report. The fact finder's report was submitted to Rogers Davis, the
Assistant Vice Chancellor for Human Resources, who relied on the report to formally
deny the September 2002 grievances. Brand asserts, and defendants do not
contest, that because of the senior professional classification to which Brand
belonged, he was not entitled under the applicable policy to appeal to a third step of
the review process. Thus, Davis's decision became the final administrative
response to the September 2002 grievances.
On October 11, 2002, shortly after he filed the September 2002 grievances, Brand
filed another internal complaint, alleging that in late September 2002 he was
retaliated against by being relocated to a different office and removed from a
particular assignment (the October 2002 grievance). The October 2002 grievance
specifically mentioned conduct by Paau, Macagno, Melman and Woods. According
to Brand, Woods rejected the October 2002 grievance at step 1 of the review
process, and Brand thereafter filed a request for a step 2 review on November 25,
2002. Neither the fact finder's April 2003 report on the September 2002 grievances
nor Assistant Vice Chancellor Davis's May 2003 denial of the September 2002
grievances addressed the October 2002 grievance.
Before the October 2002 grievance was resolved, Brand filed internal complaints on
June 19 and June 30, 2003 (the June 2003 grievances). The June 2003
grievances alleged that additional acts of retaliation occurred after the October
2002 grievance and that Brand was eventually terminated in retaliation for being a
whistleblower. Vice Chancellor Woods denied the June 2003 grievances on July 21,
2003, in step 1 of the applicable two step review process. On August 1, 2003,
exercising his right to proceed to step 2 of the review process, Brand filed a written
appeal requesting that a factfinding proceeding be conducted.
Barbara Stewart, a management services officer in the UCSD Department of
Sociology, held a factfinding meeting on September 29, 2003. Brand attended the
meeting, representing himself. Paau and Wyman represented the TTIPS office.
The factfinding meeting, as described in Stewart's report, consisted of Stewart
reading an opening statement to the parties, and Brand and the TTIPS office orally
stating their positions and submitting certain documentary evidence. Stewart's
factfinding report makes clear that she communicated with certain relevant
witnesses outside of the September 29, 2003 factfinding meeting, and she
considered information gathered from those witnesses in reaching her findings.
Following the September 29, 2003 factfinding meeting, Stewart did not issue her
factfinding report until more than seven months later, on May 11, 2004. The report
expressly addressed the June 2003 grievances. Further, although the report did
not specifically acknowledge the existence of Brand's October 2002 grievance or
state that it was addressing that grievance, the text of the report discusses the facts
put at issue in the October 2002 grievance.
On July 6, 2004, Assistant Vice Chancellor Davis issued a final decision denying the
October 2002 grievance and the June 2003 grievances, relying on Stewart's May
11, 2004 factfinding report and on documentary evidence. Davis stated that he
found "no evidence to convince me that the decision . . . to terminate Dr. Brand's
employment was linked to a protected disclosure by Dr. Brand" and that he found
"no nexus between Dr. Brand's protected disclosures and other decisions made
impacting him in the workplace." Because Brand was not entitled to appeal to a
third step of the review process, Davis's decision became the final administrative
action on the October 2002 grievance and the June 2003 grievances.
B. Brand's Lawsuit and Defendants' Demurrer
Brand filed this lawsuit in June 2005. The operative complaint alleges three causes
of action and seeks compensatory and punitive damages as well as reinstatement
of Brand to his former position. The first cause of action alleges that all of the
defendants unlawfully retaliated against Brand in violation of section 8547.10, which
prohibits retaliation against University of California employees who make protected
disclosures. The second cause of action alleges that the Regents violated Labor
Code section 1102.5. The third cause of action alleges that all of the defendants,
except the Regents, violated section 8547.11, which prohibits interference with an
employee's attempt to make a protected disclosure.
Defendants filed a demurrer to the complaint, asserting several arguments. The
first argument centered on the text of section 8547.10, subdivision (c), which limits
the circumstances in which a party may bring a suit for damages under section
8547.10. That subdivision states:
"In addition to all other penalties provided by law, any person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a
university employee . . . having made a protected disclosure shall be liable in an
action for damages brought against him or her by the injured party. . . . However,
any action for damages shall not be available to the injured party unless the injured
party has first filed a complaint with the [designated university officer], and the
university has failed to reach a decision regarding that complaint within the time
limits established for that purpose by the regents." (§ 8547.10, subd. (c), italics
added.)
Focusing on the portion of the statute italicized above, the complaint alleged that an
action for damages was authorized because neither the October 2002 grievance
nor the June 2003 grievances were resolved "within the time limits established for
that purpose by the regents," which according to the complaint comprised a total
time limit of 156 days. However, in their demurrer defendants argued that the
complaint's allegation of untimeliness was defective. Pointing out that the complaint
attached three different complaint resolution policies as exhibits, defendants
argued that at least one of the policies attached to the complaint (UCOP Procedure
70) was not applicable according to Brand's own admission in an earlier motion.
Defendants also argued that one of the other policies attached to the complaint (the
UCSD local procedures for implementing PPSM 70) did not set any time limit for the
factfinding process. Defendants, however, did not attack the applicability of the
time limits set forth in the third document attached to the complaint — the UC
Whistleblower Protection Policy.
Second, defendants argued that the demurrer should be granted as to all of the
causes of action because Brand had failed to exhaust his judicial remedies by filing
an action for damages without first challenging the Regents' decision through a writ
of mandate.
Third, defendants argued that because certain conduct that Brand objected to in
the complaint was admittedly not the subject of his internal grievances, Brand had
not exhausted his administrative remedies as to those issues.
Fourth, defendants argued that any posttermination conduct complained of by
Brand was not covered by sections 8547.10, 8547.11 or Labor Code section
1102.5.
Finally, defendants argued that the allegations against the individual defendants
were barred by the privilege set forth in Civil Code section 47, subdivision (b), or
alternatively that the individual defendants were entitled to absolute governmental
immunity under section 821.6.
C. The Trial Court's Ruling
The trial court sustained the demurrer as to all three of Brand's causes of action.
First, the trial court concluded that Brand's claims for violation of sections 8547.10
and 8547.11 were barred by section 8547.10, subdivision (c).
The trial court interpreted that provision to mean that an
action for damages is barred whenever the Regents have
reached a decision on a grievance, even if the decision is
not timely.
Citing section 8547.10, subdivision (c) and Campbell v. Regents of University of
California (2005) 35 Cal.4th 311, 327 (Campbell), the trial court stated, "The Court
believes the pertinent fact in this case to be that the Regents, whether timely or not,
reached a decision on Plaintiff's grievances prior to this action being filed.
Therefore, an action for damages is not available. [B]ecause the Regents issued a
decision — even if late — before the filing of this action, Plaintiffs' claims for
violation of [sections] 8547.10 and 8547.11 are barred by [section] 8547.10[,
subdivision ](c)."
Second, although the trial court's reasoning could be more clear, its appears that in
addition to relying on its interpretation of section 8547.10, subdivision (c), the trial
court also sustained the demurrer for the independent
reason that it believed Brand was required, under the
doctrine of judicial exhaustion, to successfully challenge
the Regents' denial of his grievances through a writ of
mandate before he would be able to bring a lawsuit for
damages.
Third, the trial court also accepted defendants' arguments that posttermination
conduct could not support any of the statutory claims asserted in the complaint, and
that Brand's complaint was barred with respect to those issues on which he had not
exhausted his administrative remedies.
The trial court specifically found it unnecessary to rule on the contention of the
individual defendants that the claims against them are barred by privilege or that
they are protected by governmental immunity.
D. Brand's Appeal
Brand appeals from the judgment. He limits his appeal to challenging the trial
court's ruling regarding the first and third causes of action (i.e., for violation of
section 8547.10 by all defendants, and section 8547.11 by the individual
defendants). Brand first argues that the trial court erred in ruling that a plaintiff
may not bring a damages suit under section 8547.10, subdivision (c) after the
Regents have reached a decision on an internal grievance, even when that
decision was untimely. Second, Brand argues that the trial court erred in ruling that
he was required, under the doctrine of judicial exhaustion, to successfully challenge
the Regents' denial of his grievances through a writ of mandate before being
permitted to bring a damages action. Third, Brand argues that the trial court erred
in ruling that his third cause of action against the individual defendants under
section 8547.11 was barred to the extent that he did not exhaust his administrative
remedies.
II DISCUSSION
A. Standard of Review
" 'On appeal from an order of dismissal after an order sustaining a demurrer, our
standard of review is de novo, i.e., we exercise our independent judgment about
whether the complaint states a cause of action as a matter of law.' " (Los Altos El
Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) In
reviewing the complaint, "we must assume the truth of all facts properly pleaded by
the plaintiffs, as well as those that are judicially noticeable." (Howard Jarvis
Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.) Further, to the
extent that the issue before us is one of statutory interpretation, we review this
question of law de novo. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th
68, 76-77.)
B. Did the Trial Court Err in Concluding that Brand's Suit for Damages Under
Section 8547.10, Subdivision (c) Was Barred Under the Terms of that Statute Even
If the Regents' Decision Was Untimely?
We first consider Brand's argument that the trial court erred in ruling that a plaintiff
may not bring a damages suit under section 8547.10, subdivision (c) after the
Regents reach a decision on an internal grievance, even when that decision was
untimely.
We approach the analysis of the issue in two separate steps. First, premised on
the allegations in the complaint and the documents of which the trial court took
judicial notice, we inquire whether Brand has a viable claim that the Regents'
decision on the October 2002 grievance and the June 2003 grievances was
untimely. Second, if we determine that Brand does have a viable claim that the
decision was untimely, we will proceed to analyze whether the trial court erred in
interpreting section 8547.10, subdivision (c) to mean that a plaintiff may not bring a
damages suit under that provision after the Regents have decided an internal
grievance, even if the Regents' decision was untimely.
1. Brand Has a Viable Claim that the Regents' Decision Was Untimely
As we have explained, the complaint alleges that the Regents were required to
decide Brand's internal complaints of retaliation within 156 days from the time they
were assigned to the fact finder. As we also have explained, the complaint attaches
the three complaint resolution policies from which it purports to derive this 156 day
deadline. Defendants take issue with Brand's claim that a 156 day deadline
applies, and they submit a fourth complaint resolution policy (i.e., PPSM 70), which
they claim has some relevance in determining the applicable deadline.
The trial court did not attempt to determine whether the complaint's allegation of a
156 day deadline is supported by the judicially noticed documents and the
documents attached to the complaint, nor did it attempt to determine which of the
complaint resolution policies cited by the parties were, in fact, applicable. Similarly,
we do not undertake to determine the correctness of Brand's allegation of a 156
day deadline or to determine whether some of the complaint resolution policies
discussed by the parties are inapplicable. Instead, for the purposes of our analysis,
we find it sufficient to rely on the deadline set forth in one of the documents that all
the parties appear to agree applies here: the UC Whistleblower Protection Policy.
The UC Whistleblower Protection Policy provides that "[w]hen an employee files a
complaint which contains an eligible allegation of retaliation under an existing
University grievance or complaint resolution procedure" and, as here, "the
complaint is filed under a complaint resolution procedure containing factfinding as
specified in University policies as part of the final available step . . . , the RCO will
serve as the factfinder." The policy provides that "[t]he RCO shall present findings
of fact based on the evidence and factual conclusions to the Chancellor within 120
days from the date on which the complaint was assigned to the RCO unless an
extension is granted by the LDO." (Italics added.)
Defendants attempt to dispute the mandatory nature of the 120 day deadline for the
RCO to present findings of fact to the Chancellor. First, they point out that the UC
Whistleblower Protection Policy provides that if a complaint is filed under an
applicable grievance or complaint resolution process instead of directly with the
LDO, "the LDO will hold the retaliation complaint in abeyance until all of the steps
preceding hearing, arbitration, or factfinding have been completed." (Italics
added.) However, because the cited policy provision deals with holding a complaint
in abeyance preceding the initiation of the RCO's factfinding procedures, it plainly
does not extend the 120 day deadline for the RCO to present findings of fact.
Second, defendants point out that under the policy the Chancellor may "remand the
findings to the RCO if further investigation is needed before making a decision."
This provision, too, has no impact on the 120 day deadline, because it does not
impact the timeline under which the RCO initially must present a factfinding report to
the Chancellor.
The UC Whistleblower Protection Policy, which contains the 120 day deadline,
states that it is "derived from the California Whistleblower Protection Act." The 120
day deadline thus appears to fit the definition of one of the "time limits established
for that purpose [i.e., reaching a decision on an internal complaint of retaliation for
making a protected disclosure] by the regents" as set forth in section 8547.10,
subdivision (c). We accordingly conclude that the UC Whistleblower Protection
Policy's 120 day deadline for the RCO to present findings of fact to the Chancellor,
is one of the "time limits established . . . by the regents" referred to in section
8547.10, subdivision (c).
Here, Brand's complaint alleges that the June 2003 grievances were assigned to
the RCO on approximately August 1, 2003. He does not allege the date on which
the October 2002 grievance was assigned to the RCO. However, it is clear from
the judicially noticed documents that the factfinding meeting regarding these
grievances took place on September 29, 2003. Thus, the relevant complaints were
assigned to the RCO (i.e., Stewart) no later than September 29, 2003, when
Stewart conducted the factfinding meeting. However, Stewart did not issue her
report or present it to the Chancellor until at least May 11, 2004, which is 225 days
after the factfinding meeting.
Because the judicially noticed documents establish that Stewart failed to present a
factfinding report to the Chancellor within 120 days of the date the complaint was
assigned to her, Brand appears to have a viable claim that the Regents failed to
reach a decision within the applicable time limits.
2. Section 8547.10, Subdivision (c) Permits a Suit for Damages, Even If the
Regents Have Reached a Final Decision on an Internal Complaint, As Long As the
Decision Is Not Timely
Having concluded that Brand has a viable claim that the Regents failed to reach a
timely decision on the October 2002 grievance and the June 2003 grievances, the
next issue is whether, because of that untimely decision, Brand is permitted to bring
a suit for damages pursuant to section 8547.10, subdivision (c).
Brand interprets section 8547.10, subdivision (c) to mean that because he pursued
an internal administrative complaint and the Regents did not make a timely decision
on the internal complaint, he was permitted to file a suit seeking damages. The trial
court, on the other hand, read section 8547.10, subdivision (c) to mean that a
damages suit is barred as long as the Regents reached a decision on the internal
complaint, even if the decision was not timely. On appeal, defendants urge us to
adopt the trial court's interpretation. As we will explain, we agree with Brand, and
we reject the trial court's reading of the statute.
Our analysis of section 8547.10, subdivision (c) begins with the plain language of
the statute, and if that language is unambiguous, our analysis ends there. "As with
any statutory construction inquiry, we must look first to the language of the statute.
'To determine legislative intent, a court begins with the words of the statute,
because they generally provide the most reliable indicator of legislative intent.'
[Citation.] If it is clear and unambiguous our inquiry ends. There is no need for
judicial construction and a court may not indulge in it. [Citation.] 'If there is no
ambiguity in the language, we presume the Legislature meant what it said and the
plain meaning of the statute governs.' " Diamond Multimedia Systems, Inc. v.
Superior Court (1999) 19 Cal.4th 1036, 1047 (Diamond Multimedia).)
Directing our attention to the language of section 8547.10, subdivision (c), the
meaning appears clear and unambiguous.
"In addition to all other penalties provided by law, any person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a
university employee . . . having made a protected disclosure shall be liable in an
action for damages brought against him or her by the injured party. . . . However,
any action for damages shall not be available to the injured party unless the injured
party has first filed a complaint with the [designated university officer], and the
university has failed to reach a decision regarding that complaint within the time
limits established for that purpose by the regents." (§ 8547.10, subd. (c), italics
added.)
The final sentence plainly states that to bring a suit for damages, two prerequisites
must have occurred. First, the plaintiff must have properly filed an internal
complaint. Second, the university must have failed to reach a decision within the
time limits established by the Regents. If these two prerequisites are met, a plaintiff
may file a suit for damages.
If we were to read the statute, as the trial court did, to mean that a damages suit is
disallowed whenever the university reaches a decision on the internal complaint,
even if the decision is not timely, we would be required to disregard a portion of the
statutory language. Specifically, we would be required to disregard the phrase —
"within the time limits established for that purpose by the regents." We may not
adopt an interpretation of a statute that ignores a portion of the statutory language.
" 'In analyzing statutory language, we seek to give meaning to every word and
phrase in the statute to accomplish a result consistent with the legislative purpose .
. . .' " (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist.
(1997) 14 Cal.4th 627, 634, italics added.) "[I]nterpretations which render any part
of a statute superfluous are to be avoided." (Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1207.)
Instead of expressly relying on the statutory language for their interpretation of
section 8547.10, subdivision (c), both the trial court and defendants rely on dictum
in Campbell, supra, 35 Cal.4th 311, 327. Campbell considered whether University
of California employees are required to exhaust their administrative remedies
before filing suit for retaliatory termination under two specific " 'whistleblower'
statutes" — section 12653, subdivision (c) and Labor Code section 1102.5.
(Campbell, at p. 317.) In the course of considering whether an employee is
required to exhaust administrative remedies before filing suit under section 12653,
subdivision (c), Campbell addressed the appellant's argument that because section
8547.10, subdivision (c) contained an explicit administrative exhaustion
requirement, but section 12653, subdivision (c) did not, the court should not read
an administrative exhaustion requirement into section 12653, subdivision (c) when
the legislature failed to include one. (Campbell, at p. 327.) Campbell included
a short paragraph describing the administrative exhaustion requirement that is set
forth in section 8547.10, subdivision (c).
"[T]he statute permits aggrieved university employees to file a damages action
provided they have followed the administrative procedures and filed an
administrative complaint before filing their lawsuit. (§ 8547.10, subd. (a).) Of note
here, the employee may not proceed with a court action against the university
unless that institution has failed to reach an administrative decision on the action
within specified time limits. (§ 8547.10, subd. (c).) In such a case, the employee
may file a lawsuit for damages even though the administrative complaint is pending.
If, by contrast, the university has reached a decision on the administrative action,
the statute does not authorize any statutory damages action." (Campbell, supra, 35
Cal.4th at p. 327.)
Defendants argue that we should rely on the wording in the last sentence of this
paragraph to conclude that our Supreme Court has interpreted section 8547.10,
subdivision (c) to mean that "if . . . the university has reached a decision on the
administrative action, the statute does not authorize any statutory damages action."
(Campbell, supra, 35 Cal.4th at p. 327.) They urge that we follow this interpretation
without regard to the actual statutory language, which refers to the preclusive effect
of a timely decision by the university, not the preclusive effect of any decision by the
university. As we will explain, we reject defendants' attempt to rewrite the clear
statutory language of section 8547.10, subdivision (c) by focusing on a single
sentence of dictum in Campbell.
Read as a whole, the relevant paragraph in Campbell sets forth an interpretation of
section 8547.10, subdivision (c) that is consistent with the clear statutory language.
Indeed, the second sentence of the paragraph accurately reflects the plain meaning
of the statute, as it states that "the employee may not proceed with a court action
against the university unless that institution has failed to reach an administrative
decision on the action within specified time limits." (Campbell, supra, 35 Cal.4th at
p. 327, italics added). In what appears to be inexact drafting, the final sentence of
the paragraph restates this concept in the negative and, perhaps inadvertently,
drops the timeliness qualifier. However, in light of the accurate description of
section 8547.10, subdivision (c) earlier in the paragraph, which unambiguously
includes the concept of timeliness, we do not read Campbell to be communicating,
through dictum, an intention to rewrite the clear language of the statute to state that
a plaintiff may not bring a damages suit following the university's decision on an
internal complaint, even when that decision was not timely.
Accordingly, we conclude that the clear and unambiguous language of section
8547.10, subdivision (c) allows Brand to proceed with his suit for damages because
he has pled a viable claim that the Regents failed to reach a timely decision on the
October 2002 grievance and the June 2003 grievances.
C. The Doctrine of Judicial Exhaustion Does Not Apply
We next consider whether the trial court erred in concluding that the doctrine of
judicial exhaustion required Brand to successfully challenge the Regents' decision
on the October 2002 grievance and the June 2003 grievances through a writ of
mandate before he was permitted to bring a suit for damages.
The doctrine of judicial exhaustion is premised on the concept of collateral
estoppel. "The underpinnings of this rule of exhaustion of judicial remedies . . . are
buried in the doctrine of res judicata or that portion of it known as collateral
estoppel . . . ." (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235,
241.) Thus, "while administrative exhaustion is a fundamental rule of procedure," "[j]
udicial exhaustion is a species of res judicata." (Ibid.) Under the doctrine of judicial
exhaustion, "collateral estoppel bars the religating of issues which were previously
resolved in an administrative hearing by an agency acting in a judicial capacity."
(Id. at p. 242.) "Unless the administrative decision is challenged, it binds the parties
on the issues litigated and if those issues are fatal to a civil suit, the plaintiff cannot
state a viable cause of action." (Id. at p. 243.)
As our Supreme Court has explained, "unless a party to a quasi-judicial proceeding
challenges the agency's adverse findings made in that proceeding, by means of a
mandate action in superior court, those findings are binding in later civil actions."
(Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70.) Pursuing a mandate
action is referred to in this context as "[e]xhaustion of judicial remedies" and "is
necessary to avoid giving binding 'effect to the administrative agency's decision,
because that decision has achieved finality due to the aggrieved party's failure to
pursue the exclusive judicial remedy for reviewing administrative action.' " (Id. at p.
70, italics omitted.)
However, not all administrative proceedings give rise to collateral estoppel.
"Collateral estoppel may be applied to decisions made by administrative agencies
'[w]hen an administrative agency is acting in a judicial capacity and resolves
disputed issues of fact properly before it which the parties have had an adequate
opportunity to litigate . . . .' " (People v. Sims (1982) 32 Cal.3d 468, 479 (Sims),
quoting United States v. Utah Constr. Co. (1966) 384 U.S. 394, 422.) When the
proceeding lacks a quasi-judicial quality, collateral estoppel does not arise. (See
Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 478.) Thus, as
our Supreme Court has explained, "For an administrative decision to have collateral
estoppel effect, it and its prior proceedings must possess a judicial character. . . .
Indicia of proceedings undertaken in a judicial capacity include a hearing before an
impartial decision maker; testimony given under oath or affirmation; a party's ability
to subpoena, call, examine, and cross-examine witnesses, to introduce
documentary evidence, and to make oral and written argument; the taking of a
record of the proceeding; and a written statement of reasons for the decision."
(Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921,
944 (Pacific Lumber), citation omitted.)
Here, the description of the proceedings set forth in Stewart's factfinding report
shows that the factfinding procedure did not have a judicial character. Specifically,
a hearing was not held, testimony was not given under oath, the parties were not
able to subpoena, call, examine, or cross-examine witnesses, and there is no
indication that a record of the proceedings was created. Instead, Stewart appears
to have conducted an investigation, consistent with step 2 in PPSM 70, in which she
interviewed witnesses outside of the presence of the parties, and relied on those
interviews, along with documentary evidence and oral statements submitted by the
parties to reach a decision. Such a procedure is not sufficient to give rise to
collateral estoppel. (See Pacific Lumber, supra, 37 Cal.4th at p. 944 [collateral
estoppel was not created when the parties were not given the opportunity to call
and cross-examine witnesses during the administrative proceeding].)
We accordingly conclude that because collateral estoppel did not arise from the
Regents' decision denying the October 2002 grievance and the June 2003
grievances, Brand was not required to challenge those decisions through a writ of
mandate prior to adjudicating a suit for damages.
D. Brand Was Required to Exhaust Administrative Remedies with Respect to
His Allegations Under Section 8547.11
Brand argues that the trial court erred in ruling that he was required to exhaust his
administrative remedies with respect to certain of his claims against the individual
defendants in the third cause of action brought pursuant to section 8547.11. Brand
contends that because there is no statement in section 8547.11 requiring that a
plaintiff first exhaust administrative remedies, he was not required to do so.
As a preliminary matter, we note that the trial court's ruling is not particularly clear
about the role that the concept of failure to exhaust administrative remedies played
in its decision to sustain the demurrer to the third cause of action. On that issue,
the trial court made the following statements. First, it stated, "As to the contention
that certain conduct occurring while [Brand] was employed by the University was not
discovered until after [Brand]'s termination, the Court finds such claims are barred
for [Brand]'s failure to pursue and exhaust his administrative remedies." Second,
summarizing its ruling the court stated, among other things, that "all three causes of
action are barred for failure to exhaust administrative and/or judicial remedies."
Reading the trial court's ruling as a whole, however, the order sustaining the
demurrer to the third cause of action appears to have been based primarily on the
decision that Brand had failed to exhaust his judicial remedies and was therefore
barred by collateral estoppel, not that Brand failed to exhaust his administrative
remedies.
Indeed, from our review of the record, it appears that the trial court could not have
properly cited Brand's failure to exhaust administrative remedies as a basis to
sustain a demurrer to the third cause of action. This is because there are clearly
some allegations within the third cause of action for which, according to the judicially
noticed documents, Brand did exhaust his administrative remedies when he
included those allegations in the September 2002 grievances, the October 2002
grievance, or the June 2003 grievances. "A demurrer does not lie to a portion of a
cause of action" (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682)
and "must dispose of an entire cause of action to be sustained." (Fremont
Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) Because
the failure to exhaust administrative remedies would not dispose of the entire cause
of action, the trial court erred to the extent that it sustained the third cause of action
on that basis.
On remand, the proper vehicle by which defendants could challenge particular
allegations as being barred by failure to exhaust administrative remedies would
include a motion to strike those allegations from the complaint. (Code Civ. Proc., §
436.) Because the issue is likely to arise on remand, we will discuss Brand's
contention that he was not required to exhaust his administrative remedies with
respect to any portion of his claims brought under section 8547.11. (Wachovia
Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1056 [addressing
issue to provide guidance on remand].)
As our Supreme Court explained in Campbell, supra, 35 Cal.4th 311, "the rule of
exhaustion of administrative remedies is well established in California jurisprudence
. . . . '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.' . . . The exhaustion rule extends to employees seeking
judicial review of an employer's administrative findings." (Id. at p. 321, citations &
fn. omitted.) Campbell further established that the administrative exhaustion
requirement need not be spelled out in the applicable statute under which the
plaintiff is attempting to file a lawsuit, but instead applies as a long-standing
common law principle unless the applicable statute provides otherwise. (Id. at p.
328 ["the Legislature's silence in the . . . statute makes the common law exhaustion
rule applicable here and requires employees to exhaust their internal administrative
remedies prior to filing a lawsuit"].) "[A]bsent a clear indication of legislative intent,
we should refrain from inferring a statutory exemption from our settled rule requiring
exhaustion of administrative remedies." (Id. at p. 333.)
Thus, because the text of section 8547.11 reveals no evidence that the Legislature
intended to depart from the common law requirement of exhaustion of administrative
remedies, that requirement applies here, and Brand must first exhaust his
administrative remedies with respect to his claims asserted under section 8547.11.
As Campbell recognized, "the administrative remedies exhaustion rule has several
exceptions, including, but not limited to . . . (1) when the administrative agency
cannot provide an adequate remedy, and (2) when the subject of controversy lies
outside the agency's jurisdiction." (Campbell, supra, 35 Cal.4th at p. 322.) As we
will explain, neither of these exceptions apply here (and Brand does not identify any
other possible exceptions). Specifically, a claim under section 8547.11 focuses on
an individual's interference with the right of an employee to make protected
disclosures. The UC Whistleblower Protection Policy covers "complaints of . . .
interference" filed by employees, which is defined in the policy as "[d]irect or indirect
use of authority to obstruct an individual's rights to make a protected disclosure."
Under the policy, the chancellor "determines the appropriate corrective action, if
any, which will be initiated against a University employee who is found to have . . .
interfered with an employee's . . . right to make a protected disclosure." Thus,
based on the UC Whistleblower Protection Policy, the subject of Brand's claims
appears to fall within the scope of the Regent's jurisdiction, and the Regents are
able to provide an adequate remedy.
We accordingly conclude that because the doctrine of administrative exhaustion
applies to Brand's claims brought under section 8547.11, Brand is barred from
asserting any allegations that he did not pursue in his internal complaints.
E. Additional Grounds for Demurrer Not Reached by the Trial Court
Defendants argue that the ruling on the demurrer to the third cause of action (i.e.,
the claim against the individual defendants for interference under § 8547.11)
should be affirmed on grounds not reached by the trial court. "A judgment of
dismissal after a demurrer has been sustained without leave to amend will be
affirmed if proper on any grounds stated in the demurrer, whether or not the court
acted on that ground." (Carman v. Alvord (1982) 31 Cal.3d 318, 324 (Carman).)
Thus, we will consider the additional grounds for the demurrer advanced below by
defendants, but not ruled on by the trial court, to determine whether they provide a
basis for affirming the judgment of dismissal.
As a preliminary matter, we note that defendants' appellate briefing urges us to
affirm the demurrer to the third cause of action based on several grounds not
presented to the trial court. Because our inquiry is whether there were any grounds
"stated in the demurrer" that could support the trial court's order sustaining the
demurer ruling, we do not consider those arguments. (Carman, supra, 31 Cal.3d
at p. 324.) The only additional grounds for demurrer to the third cause of action
asserted in the trial court, but not ruled on, were (1) that the allegations made in
paragraph 56 of the complaint were barred by the absolute privilege established by
Civil Code section 47, subdivision (b), which applies to communications made in the
course of official proceedings; and (2) that Melman has immunity under section
821.6 from allegations that he delayed in initiating the investigation of the October
2002 grievance.
We now turn to an examination of these arguments.
1. Claim of Privilege Under Civil Code Section 47, Subdivision (b)
Civil Code section 47, subdivision (b) creates an absolute privilege for, among other
things, a "publication or broadcast" made "in any . . . official proceeding authorized
by law." "The term 'official proceeding' extends to investigatory activities by public
agencies." (Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452,
478.) For example, statements made in the State Auditor's report into a
whistleblower's allegation of improper governmental activity were privileged
statements made in an "official proceeding." (Braun v. Bureau of State Audits
(1998) 67 Cal.App.4th 1382, 1388-1389.) "The privilege applies to any
communication made in such proceedings by a participant that has some
connection or logical relation to the proceedings." (Garamendi, at p. 478.) Thus, in
this case, statements made in connection with the official investigation into Brand's
allegations concerning Paau's misconduct, or into Brand's internal complaints that
he was retaliated against for his protected disclosures, would be covered by the
privilege.
Defendants argued that the third cause of action is subject to demurrer because
the allegations supporting that cause of action, which are set forth in paragraph 56
of the complaint, rely on statements protected by the privilege set forth Civil Code
section 47, subdivision (b). To analyze this argument, we will examine each of the
items that defendants contend is subject to the privilege.
Paragraph 56(a) of the complaint alleges that one day after Brand made a
protected disclosure about Paau's allegedly improper activities to a confidential
whistleblower hotline, Wyman, who allegedly had no role in investigating the hotline
report, improperly disclosed a transcript of the hotline report to Paau. The
paragraph further alleges that Paau and Wyman thereafter colluded to render a
false performance evaluation of Brand. Neither of these allegations seek to hold
any defendant liable for a communication made in connection with an official
proceeding, and thus the privilege set forth in Civil Code section 47, subdivision (b)
does not apply.
Paragraph 56(b) of the complaint alleges that after Brand started a dialog with an
attorney in the University of California Office of the President regarding Paau's
allegedly improper activities, Paau interfered and stopped the dialog by accusing
Brand of insubordination, and later used this instance of purported insubordination
to give Brand a negative performance review. This allegation also does not seek to
hold any defendant liable for a communication made in connection with an official
proceeding, and thus also is not covered by the privilege set forth in Civil Code
section 47, subdivision (b).
Paragraph 56(c) of the complaint has multiple subparts describing various alleged
impermissible conduct. First, Brand alleges that Paau threatened to humiliate him if
he did not resign, and despite Brand's request, Woods did not take action to protect
Brand. Second, Brand alleges that Paau continued to obstruct Brand's
performance of his employment duties, involving Macagno in some of that
obstruction; sought to falsify Brand's employment records; and ultimately terminated
Brand. Third, referring to Stewart's May 2004 factfinding report, Brand alleges that
Melman sought to discredit Brand through the factfinding report allegedly issued by
Melman's "organization," which allegedly contained a "blatant disregard of the
facts." Finally, Brand alleges that Paau made untrue statements in his letter of
intent to terminate Brand. We conclude that only one of these allegations seeks to
hold a defendant liable for a statement made in connection with an official
proceeding. Specifically, the statements made in Stewart's May 2004 factfinding
report, which Brand attempts to ascribe to Melman, were made in the course of an
official factfinding investigation by a participant in that investigation and thus are
covered by the privilege set forth in Civil Code section 47, subdivision (b).
2. Immunity Under Section 821.6
Paragraph 56(c)(8) of the complaint alleges that Melman improperly refused to
initiate the factfinding proceeding concerning the October 2002 grievance until
September 2003.
Defendants' demurrer argued that Melman has immunity for this conduct under
section 821.6, which states: "A public employee is not liable for injury caused by his
instituting or prosecuting any judicial or administrative proceeding within the scope
of his employment, even if he acts maliciously and without probable cause."
In opposition to the demurrer, Brand did not contend that section 821.6 was
inapplicable to an official's delay in instituting a factfinding proceeding. Indeed, we
note that the immunity afforded by section 821.6 is arguably broad enough to cover
Melman's alleged delay in instituting proceedings. " 'The immunity conferred by
section 821.6 is not limited to peace officers and prosecutors but has been
extended to public school officials . . . , heads of administrative departments . . . ,
social workers . . . , county coroners . . . , and members of county boards of
supervisors . . . .' " (Javor v. Taggart (2002) 98 Cal.App.4th 795, 808 (Javor).)
Further, "[s]ection 821.6 is not limited to conduct occurring during formal
proceedings. '[I]t also extends to actions taken in preparation for formal
proceedings. Because investigation is "an essential step" toward the institution of
formal proceedings, it "is also cloaked with immunity." ' " (Ibid.) It is also relevant
that " ' "[s]ection 821.6 is not limited to suits for damages for malicious prosecution,
although that is a principal use of the statute." ' " (Ibid.)
Instead of disputing the general applicability of section 821.6 to the situation
presented, Brand argued that Melman is not protected by immunity because he was
not acting within the scope of his employment as required by the plain language of
the statute. We reject this argument. The complaint alleges that Melman did not
initiate the investigation of the October 2002 grievance, although "the policy
required him to do so." (Italics added.) This is an implicit admission that institution
of the investigation was within Melman's official duties, and accordingly, that he was
acting within the scope of his employment in delaying the investigation. We thus
conclude that Melman's delay in instituting the factfinding proceeding was covered
by the immunity set forth in section 821.6.
Because the allegation in paragraphs 56(c)(8) and 56(c)(9) of the complaint are the
only allegations pertaining to Melman in the third cause of action, and we have
determined that both of those allegations fail (based on the privilege afforded by
Civil Code section 47, subdivision (b) and the immunity set forth in section 821.6,
respectively), we conclude that the third cause of action fails to state a claim against
Melman. We thus affirm the demurrer to the third cause of action only as to Melman.
DISPOSITION
Except for the trial court's ruling sustaining the demurrer to the third cause of action
against Melman and the ruling sustaining the demurrer to the second cause of
action, which Brand does not challenge on appeal, we reverse the judgment and
remand for proceedings consistent with this opinion. Each party to bear its own
costs on appeal.
IRION, J.
WE CONCUR
MCCONNELL, P. J.
HUFFMAN, J.
Filed 2/11/08
UCSD Medical Center Settles Lawsuit Over Hiring Practices
By Dorian Hargrove
San Diego Reader
January 5, 2012
The Justice Department announced that UCSD Medical Center has agreed to
change hiring practices at the Hillcrest facility and pay a $115,000 penalty in order
to resolve a complaint that the hospital excessively screened immigrant job-
applicants.
The complaint, filed by the Department of Justice on December 6, alleged the
medical center required non-citizen new hires to submit numerous documents in
hopes of verifying employment status, yet did not use the same standards for U.S.
citizens. The Immigration and Nationality Act prohibits employers from requesting an
"unfair" amount of documents based on the applicant's nationality or citizenship.
In addition to the fine, the Department of Justice stated the medical facility has
undergone additional training, and will train human resource employees proper
hiring practices.
“Federal law protects people who are authorized to work in the United States from
facing barriers and discrimination when they are seeking employment,” stated
Assistant Attorney General with the Civil Rights Division, Thomas E. Perez. “I
commend medical center officials on their cooperation in working with us to reach
this resolution."
UCLA settled with Dr. Pedowitz for $10 million.
CERTIFIED FOR PUBLICATION
Filed 1/18/08
Certified for publication 2/11/08
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT, DIVISION ONE
STATE OF CALIFORNIA
LARRY BRAND,
Plaintiff and Appellant,
v.
REGENTS OF THE UNIVERSITY OF CALIFORNIA et al.,
Defendants and Respondents.
D049350 [Click HERE to see copy with footnotes.]
(Super. Ct. No. GIC848844)
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Reversed in part and affirmed in part.
Larry Brand appeals from a judgment entered after the trial court sustained the
demurrer of defendants the Regents of the University of California (the Regents),
Alan Paau, John Woods, Eduardo Macagno, Michael Melman and Daniel Wyman
(collectively, defendants) to Brand's lawsuit. The lawsuit alleged that defendants
unlawfully retaliated against him for making disclosures protected by the California
Whistleblower Protection Act (Gov. Code, § 8547 et seq.).
We conclude that except with respect to the third cause of action against Melman
(and the second cause of action, which is not at issue in this appeal), the trial court
erred in sustaining the demurer. Accordingly, we reverse the judgment in part.
I FACTUAL AND PROCEDURAL BACKGROUND
A. Brand's Whistleblowing Activity and Complaints of Retaliation
According to the operative second amended complaint in this action (the complaint),
Brand was employed by the Regents as a senior licensing officer in the Technology
Transfer and Intellectual Property Service office (TTIPS) at the campus of the
University of California, San Diego (UCSD). Brand alleges that he discovered
"serious and unlawful fraud and misappropriation of funds," self-dealing
and other conflicts of interest involving his supervisor, Paau, and then,
beginning in March 2001, he "made a number of internal reports aimed at
alerting UC management to the state of affairs." According to Brand, his
disclosures became known to Paau, who, along with Woods, Melman,
Wyman and Macagno, retaliated against Brand.*3
[*3 According to the complaint, Woods, Melman, Wyman and Macagno are all
employees of the Regents. The complaint does not fully explain their employment
positions, but from information in the record it appears that during the relevant time
frame (1) Woods was the UCSD Vice Chancellor, Resource Management; (2)
Melman was the UCSD Director, Labor Relations; (3) Wyman was a Labor
Advocate, Human Resources Labor Relations at UCSD; and (4) Macagno was a
dean in UCSD's Biology Department. ]
Brand claims that the retaliation included withholding salary increases, giving him
unjustified negative performance reviews, maintaining a hostile work environment,
taking work away from him, threatening him with termination, and ultimately
terminating him in June 2003.
In response to the perceived retaliation, Brand filed several internal written
complaints with UCSD's locally designated officer (LDO) under the University of
California Policy for Protection of Whistleblowers from Retaliation and Guidelines for
Reviewing Retaliation Complaints (UC Whistleblower Protection Policy). In each of
his internal complaints, Brand complained that he was retaliated against in violation
of the California Whistleblower Protection Act (§ 8547 et seq.).
Brand's first internal complaints were filed on September 18 and September 22,
2002 (the September 2002 grievances) and focused on unsatisfactory performance
evaluations, the loss of a salary increase and pressure to offer his resignation. The
September 2002 grievances were addressed through a two-step internal process
premised on the procedures set forth in the UC Whistleblower Protection Policy and
policy 70 of the University of California's Personnel Policy for Staff Members (PPSM
70). At the first step of the procedure, Vice Chancellor Woods responded with a
written denial on October 30, 2002. At the second step, in response to Brand's
request, a factfinding meeting was held in February 2003. In April 2003, the fact
finder issued a report. The fact finder's report was submitted to Rogers Davis, the
Assistant Vice Chancellor for Human Resources, who relied on the report to formally
deny the September 2002 grievances. Brand asserts, and defendants do not
contest, that because of the senior professional classification to which Brand
belonged, he was not entitled under the applicable policy to appeal to a third step of
the review process. Thus, Davis's decision became the final administrative
response to the September 2002 grievances.
On October 11, 2002, shortly after he filed the September 2002 grievances, Brand
filed another internal complaint, alleging that in late September 2002 he was
retaliated against by being relocated to a different office and removed from a
particular assignment (the October 2002 grievance). The October 2002 grievance
specifically mentioned conduct by Paau, Macagno, Melman and Woods. According
to Brand, Woods rejected the October 2002 grievance at step 1 of the review
process, and Brand thereafter filed a request for a step 2 review on November 25,
2002. Neither the fact finder's April 2003 report on the September 2002 grievances
nor Assistant Vice Chancellor Davis's May 2003 denial of the September 2002
grievances addressed the October 2002 grievance.
Before the October 2002 grievance was resolved, Brand filed internal complaints on
June 19 and June 30, 2003 (the June 2003 grievances). The June 2003
grievances alleged that additional acts of retaliation occurred after the October
2002 grievance and that Brand was eventually terminated in retaliation for being a
whistleblower. Vice Chancellor Woods denied the June 2003 grievances on July 21,
2003, in step 1 of the applicable two step review process. On August 1, 2003,
exercising his right to proceed to step 2 of the review process, Brand filed a written
appeal requesting that a factfinding proceeding be conducted.
Barbara Stewart, a management services officer in the UCSD Department of
Sociology, held a factfinding meeting on September 29, 2003. Brand attended the
meeting, representing himself. Paau and Wyman represented the TTIPS office.
The factfinding meeting, as described in Stewart's report, consisted of Stewart
reading an opening statement to the parties, and Brand and the TTIPS office orally
stating their positions and submitting certain documentary evidence. Stewart's
factfinding report makes clear that she communicated with certain relevant
witnesses outside of the September 29, 2003 factfinding meeting, and she
considered information gathered from those witnesses in reaching her findings.
Following the September 29, 2003 factfinding meeting, Stewart did not issue her
factfinding report until more than seven months later, on May 11, 2004. The report
expressly addressed the June 2003 grievances. Further, although the report did
not specifically acknowledge the existence of Brand's October 2002 grievance or
state that it was addressing that grievance, the text of the report discusses the facts
put at issue in the October 2002 grievance.
On July 6, 2004, Assistant Vice Chancellor Davis issued a final decision denying the
October 2002 grievance and the June 2003 grievances, relying on Stewart's May
11, 2004 factfinding report and on documentary evidence. Davis stated that he
found "no evidence to convince me that the decision . . . to terminate Dr. Brand's
employment was linked to a protected disclosure by Dr. Brand" and that he found
"no nexus between Dr. Brand's protected disclosures and other decisions made
impacting him in the workplace." Because Brand was not entitled to appeal to a
third step of the review process, Davis's decision became the final administrative
action on the October 2002 grievance and the June 2003 grievances.
B. Brand's Lawsuit and Defendants' Demurrer
Brand filed this lawsuit in June 2005. The operative complaint alleges three causes
of action and seeks compensatory and punitive damages as well as reinstatement
of Brand to his former position. The first cause of action alleges that all of the
defendants unlawfully retaliated against Brand in violation of section 8547.10, which
prohibits retaliation against University of California employees who make protected
disclosures. The second cause of action alleges that the Regents violated Labor
Code section 1102.5. The third cause of action alleges that all of the defendants,
except the Regents, violated section 8547.11, which prohibits interference with an
employee's attempt to make a protected disclosure.
Defendants filed a demurrer to the complaint, asserting several arguments. The
first argument centered on the text of section 8547.10, subdivision (c), which limits
the circumstances in which a party may bring a suit for damages under section
8547.10. That subdivision states:
"In addition to all other penalties provided by law, any person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a
university employee . . . having made a protected disclosure shall be liable in an
action for damages brought against him or her by the injured party. . . . However,
any action for damages shall not be available to the injured party unless the injured
party has first filed a complaint with the [designated university officer], and the
university has failed to reach a decision regarding that complaint within the time
limits established for that purpose by the regents." (§ 8547.10, subd. (c), italics
added.)
Focusing on the portion of the statute italicized above, the complaint alleged that an
action for damages was authorized because neither the October 2002 grievance
nor the June 2003 grievances were resolved "within the time limits established for
that purpose by the regents," which according to the complaint comprised a total
time limit of 156 days. However, in their demurrer defendants argued that the
complaint's allegation of untimeliness was defective. Pointing out that the complaint
attached three different complaint resolution policies as exhibits, defendants
argued that at least one of the policies attached to the complaint (UCOP Procedure
70) was not applicable according to Brand's own admission in an earlier motion.
Defendants also argued that one of the other policies attached to the complaint (the
UCSD local procedures for implementing PPSM 70) did not set any time limit for the
factfinding process. Defendants, however, did not attack the applicability of the
time limits set forth in the third document attached to the complaint — the UC
Whistleblower Protection Policy.
Second, defendants argued that the demurrer should be granted as to all of the
causes of action because Brand had failed to exhaust his judicial remedies by filing
an action for damages without first challenging the Regents' decision through a writ
of mandate.
Third, defendants argued that because certain conduct that Brand objected to in
the complaint was admittedly not the subject of his internal grievances, Brand had
not exhausted his administrative remedies as to those issues.
Fourth, defendants argued that any posttermination conduct complained of by
Brand was not covered by sections 8547.10, 8547.11 or Labor Code section
1102.5.
Finally, defendants argued that the allegations against the individual defendants
were barred by the privilege set forth in Civil Code section 47, subdivision (b), or
alternatively that the individual defendants were entitled to absolute governmental
immunity under section 821.6.
C. The Trial Court's Ruling
The trial court sustained the demurrer as to all three of Brand's causes of action.
First, the trial court concluded that Brand's claims for violation of sections 8547.10
and 8547.11 were barred by section 8547.10, subdivision (c).
The trial court interpreted that provision to mean that an
action for damages is barred whenever the Regents have
reached a decision on a grievance, even if the decision is
not timely.
Citing section 8547.10, subdivision (c) and Campbell v. Regents of University of
California (2005) 35 Cal.4th 311, 327 (Campbell), the trial court stated, "The Court
believes the pertinent fact in this case to be that the Regents, whether timely or not,
reached a decision on Plaintiff's grievances prior to this action being filed.
Therefore, an action for damages is not available. [B]ecause the Regents issued a
decision — even if late — before the filing of this action, Plaintiffs' claims for
violation of [sections] 8547.10 and 8547.11 are barred by [section] 8547.10[,
subdivision ](c)."
Second, although the trial court's reasoning could be more clear, its appears that in
addition to relying on its interpretation of section 8547.10, subdivision (c), the trial
court also sustained the demurrer for the independent
reason that it believed Brand was required, under the
doctrine of judicial exhaustion, to successfully challenge
the Regents' denial of his grievances through a writ of
mandate before he would be able to bring a lawsuit for
damages.
Third, the trial court also accepted defendants' arguments that posttermination
conduct could not support any of the statutory claims asserted in the complaint, and
that Brand's complaint was barred with respect to those issues on which he had not
exhausted his administrative remedies.
The trial court specifically found it unnecessary to rule on the contention of the
individual defendants that the claims against them are barred by privilege or that
they are protected by governmental immunity.
D. Brand's Appeal
Brand appeals from the judgment. He limits his appeal to challenging the trial
court's ruling regarding the first and third causes of action (i.e., for violation of
section 8547.10 by all defendants, and section 8547.11 by the individual
defendants). Brand first argues that the trial court erred in ruling that a plaintiff
may not bring a damages suit under section 8547.10, subdivision (c) after the
Regents have reached a decision on an internal grievance, even when that
decision was untimely. Second, Brand argues that the trial court erred in ruling that
he was required, under the doctrine of judicial exhaustion, to successfully challenge
the Regents' denial of his grievances through a writ of mandate before being
permitted to bring a damages action. Third, Brand argues that the trial court erred
in ruling that his third cause of action against the individual defendants under
section 8547.11 was barred to the extent that he did not exhaust his administrative
remedies.
II DISCUSSION
A. Standard of Review
" 'On appeal from an order of dismissal after an order sustaining a demurrer, our
standard of review is de novo, i.e., we exercise our independent judgment about
whether the complaint states a cause of action as a matter of law.' " (Los Altos El
Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) In
reviewing the complaint, "we must assume the truth of all facts properly pleaded by
the plaintiffs, as well as those that are judicially noticeable." (Howard Jarvis
Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.) Further, to the
extent that the issue before us is one of statutory interpretation, we review this
question of law de novo. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th
68, 76-77.)
B. Did the Trial Court Err in Concluding that Brand's Suit for Damages Under
Section 8547.10, Subdivision (c) Was Barred Under the Terms of that Statute Even
If the Regents' Decision Was Untimely?
We first consider Brand's argument that the trial court erred in ruling that a plaintiff
may not bring a damages suit under section 8547.10, subdivision (c) after the
Regents reach a decision on an internal grievance, even when that decision was
untimely.
We approach the analysis of the issue in two separate steps. First, premised on
the allegations in the complaint and the documents of which the trial court took
judicial notice, we inquire whether Brand has a viable claim that the Regents'
decision on the October 2002 grievance and the June 2003 grievances was
untimely. Second, if we determine that Brand does have a viable claim that the
decision was untimely, we will proceed to analyze whether the trial court erred in
interpreting section 8547.10, subdivision (c) to mean that a plaintiff may not bring a
damages suit under that provision after the Regents have decided an internal
grievance, even if the Regents' decision was untimely.
1. Brand Has a Viable Claim that the Regents' Decision Was Untimely
As we have explained, the complaint alleges that the Regents were required to
decide Brand's internal complaints of retaliation within 156 days from the time they
were assigned to the fact finder. As we also have explained, the complaint attaches
the three complaint resolution policies from which it purports to derive this 156 day
deadline. Defendants take issue with Brand's claim that a 156 day deadline
applies, and they submit a fourth complaint resolution policy (i.e., PPSM 70), which
they claim has some relevance in determining the applicable deadline.
The trial court did not attempt to determine whether the complaint's allegation of a
156 day deadline is supported by the judicially noticed documents and the
documents attached to the complaint, nor did it attempt to determine which of the
complaint resolution policies cited by the parties were, in fact, applicable. Similarly,
we do not undertake to determine the correctness of Brand's allegation of a 156
day deadline or to determine whether some of the complaint resolution policies
discussed by the parties are inapplicable. Instead, for the purposes of our analysis,
we find it sufficient to rely on the deadline set forth in one of the documents that all
the parties appear to agree applies here: the UC Whistleblower Protection Policy.
The UC Whistleblower Protection Policy provides that "[w]hen an employee files a
complaint which contains an eligible allegation of retaliation under an existing
University grievance or complaint resolution procedure" and, as here, "the
complaint is filed under a complaint resolution procedure containing factfinding as
specified in University policies as part of the final available step . . . , the RCO will
serve as the factfinder." The policy provides that "[t]he RCO shall present findings
of fact based on the evidence and factual conclusions to the Chancellor within 120
days from the date on which the complaint was assigned to the RCO unless an
extension is granted by the LDO." (Italics added.)
Defendants attempt to dispute the mandatory nature of the 120 day deadline for the
RCO to present findings of fact to the Chancellor. First, they point out that the UC
Whistleblower Protection Policy provides that if a complaint is filed under an
applicable grievance or complaint resolution process instead of directly with the
LDO, "the LDO will hold the retaliation complaint in abeyance until all of the steps
preceding hearing, arbitration, or factfinding have been completed." (Italics
added.) However, because the cited policy provision deals with holding a complaint
in abeyance preceding the initiation of the RCO's factfinding procedures, it plainly
does not extend the 120 day deadline for the RCO to present findings of fact.
Second, defendants point out that under the policy the Chancellor may "remand the
findings to the RCO if further investigation is needed before making a decision."
This provision, too, has no impact on the 120 day deadline, because it does not
impact the timeline under which the RCO initially must present a factfinding report to
the Chancellor.
The UC Whistleblower Protection Policy, which contains the 120 day deadline,
states that it is "derived from the California Whistleblower Protection Act." The 120
day deadline thus appears to fit the definition of one of the "time limits established
for that purpose [i.e., reaching a decision on an internal complaint of retaliation for
making a protected disclosure] by the regents" as set forth in section 8547.10,
subdivision (c). We accordingly conclude that the UC Whistleblower Protection
Policy's 120 day deadline for the RCO to present findings of fact to the Chancellor,
is one of the "time limits established . . . by the regents" referred to in section
8547.10, subdivision (c).
Here, Brand's complaint alleges that the June 2003 grievances were assigned to
the RCO on approximately August 1, 2003. He does not allege the date on which
the October 2002 grievance was assigned to the RCO. However, it is clear from
the judicially noticed documents that the factfinding meeting regarding these
grievances took place on September 29, 2003. Thus, the relevant complaints were
assigned to the RCO (i.e., Stewart) no later than September 29, 2003, when
Stewart conducted the factfinding meeting. However, Stewart did not issue her
report or present it to the Chancellor until at least May 11, 2004, which is 225 days
after the factfinding meeting.
Because the judicially noticed documents establish that Stewart failed to present a
factfinding report to the Chancellor within 120 days of the date the complaint was
assigned to her, Brand appears to have a viable claim that the Regents failed to
reach a decision within the applicable time limits.
2. Section 8547.10, Subdivision (c) Permits a Suit for Damages, Even If the
Regents Have Reached a Final Decision on an Internal Complaint, As Long As the
Decision Is Not Timely
Having concluded that Brand has a viable claim that the Regents failed to reach a
timely decision on the October 2002 grievance and the June 2003 grievances, the
next issue is whether, because of that untimely decision, Brand is permitted to bring
a suit for damages pursuant to section 8547.10, subdivision (c).
Brand interprets section 8547.10, subdivision (c) to mean that because he pursued
an internal administrative complaint and the Regents did not make a timely decision
on the internal complaint, he was permitted to file a suit seeking damages. The trial
court, on the other hand, read section 8547.10, subdivision (c) to mean that a
damages suit is barred as long as the Regents reached a decision on the internal
complaint, even if the decision was not timely. On appeal, defendants urge us to
adopt the trial court's interpretation. As we will explain, we agree with Brand, and
we reject the trial court's reading of the statute.
Our analysis of section 8547.10, subdivision (c) begins with the plain language of
the statute, and if that language is unambiguous, our analysis ends there. "As with
any statutory construction inquiry, we must look first to the language of the statute.
'To determine legislative intent, a court begins with the words of the statute,
because they generally provide the most reliable indicator of legislative intent.'
[Citation.] If it is clear and unambiguous our inquiry ends. There is no need for
judicial construction and a court may not indulge in it. [Citation.] 'If there is no
ambiguity in the language, we presume the Legislature meant what it said and the
plain meaning of the statute governs.' " Diamond Multimedia Systems, Inc. v.
Superior Court (1999) 19 Cal.4th 1036, 1047 (Diamond Multimedia).)
Directing our attention to the language of section 8547.10, subdivision (c), the
meaning appears clear and unambiguous.
"In addition to all other penalties provided by law, any person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a
university employee . . . having made a protected disclosure shall be liable in an
action for damages brought against him or her by the injured party. . . . However,
any action for damages shall not be available to the injured party unless the injured
party has first filed a complaint with the [designated university officer], and the
university has failed to reach a decision regarding that complaint within the time
limits established for that purpose by the regents." (§ 8547.10, subd. (c), italics
added.)
The final sentence plainly states that to bring a suit for damages, two prerequisites
must have occurred. First, the plaintiff must have properly filed an internal
complaint. Second, the university must have failed to reach a decision within the
time limits established by the Regents. If these two prerequisites are met, a plaintiff
may file a suit for damages.
If we were to read the statute, as the trial court did, to mean that a damages suit is
disallowed whenever the university reaches a decision on the internal complaint,
even if the decision is not timely, we would be required to disregard a portion of the
statutory language. Specifically, we would be required to disregard the phrase —
"within the time limits established for that purpose by the regents." We may not
adopt an interpretation of a statute that ignores a portion of the statutory language.
" 'In analyzing statutory language, we seek to give meaning to every word and
phrase in the statute to accomplish a result consistent with the legislative purpose .
. . .' " (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist.
(1997) 14 Cal.4th 627, 634, italics added.) "[I]nterpretations which render any part
of a statute superfluous are to be avoided." (Wells v. One2One Learning
Foundation (2006) 39 Cal.4th 1164, 1207.)
Instead of expressly relying on the statutory language for their interpretation of
section 8547.10, subdivision (c), both the trial court and defendants rely on dictum
in Campbell, supra, 35 Cal.4th 311, 327. Campbell considered whether University
of California employees are required to exhaust their administrative remedies
before filing suit for retaliatory termination under two specific " 'whistleblower'
statutes" — section 12653, subdivision (c) and Labor Code section 1102.5.
(Campbell, at p. 317.) In the course of considering whether an employee is
required to exhaust administrative remedies before filing suit under section 12653,
subdivision (c), Campbell addressed the appellant's argument that because section
8547.10, subdivision (c) contained an explicit administrative exhaustion
requirement, but section 12653, subdivision (c) did not, the court should not read
an administrative exhaustion requirement into section 12653, subdivision (c) when
the legislature failed to include one. (Campbell, at p. 327.) Campbell included
a short paragraph describing the administrative exhaustion requirement that is set
forth in section 8547.10, subdivision (c).
"[T]he statute permits aggrieved university employees to file a damages action
provided they have followed the administrative procedures and filed an
administrative complaint before filing their lawsuit. (§ 8547.10, subd. (a).) Of note
here, the employee may not proceed with a court action against the university
unless that institution has failed to reach an administrative decision on the action
within specified time limits. (§ 8547.10, subd. (c).) In such a case, the employee
may file a lawsuit for damages even though the administrative complaint is pending.
If, by contrast, the university has reached a decision on the administrative action,
the statute does not authorize any statutory damages action." (Campbell, supra, 35
Cal.4th at p. 327.)
Defendants argue that we should rely on the wording in the last sentence of this
paragraph to conclude that our Supreme Court has interpreted section 8547.10,
subdivision (c) to mean that "if . . . the university has reached a decision on the
administrative action, the statute does not authorize any statutory damages action."
(Campbell, supra, 35 Cal.4th at p. 327.) They urge that we follow this interpretation
without regard to the actual statutory language, which refers to the preclusive effect
of a timely decision by the university, not the preclusive effect of any decision by the
university. As we will explain, we reject defendants' attempt to rewrite the clear
statutory language of section 8547.10, subdivision (c) by focusing on a single
sentence of dictum in Campbell.
Read as a whole, the relevant paragraph in Campbell sets forth an interpretation of
section 8547.10, subdivision (c) that is consistent with the clear statutory language.
Indeed, the second sentence of the paragraph accurately reflects the plain meaning
of the statute, as it states that "the employee may not proceed with a court action
against the university unless that institution has failed to reach an administrative
decision on the action within specified time limits." (Campbell, supra, 35 Cal.4th at
p. 327, italics added). In what appears to be inexact drafting, the final sentence of
the paragraph restates this concept in the negative and, perhaps inadvertently,
drops the timeliness qualifier. However, in light of the accurate description of
section 8547.10, subdivision (c) earlier in the paragraph, which unambiguously
includes the concept of timeliness, we do not read Campbell to be communicating,
through dictum, an intention to rewrite the clear language of the statute to state that
a plaintiff may not bring a damages suit following the university's decision on an
internal complaint, even when that decision was not timely.
Accordingly, we conclude that the clear and unambiguous language of section
8547.10, subdivision (c) allows Brand to proceed with his suit for damages because
he has pled a viable claim that the Regents failed to reach a timely decision on the
October 2002 grievance and the June 2003 grievances.
C. The Doctrine of Judicial Exhaustion Does Not Apply
We next consider whether the trial court erred in concluding that the doctrine of
judicial exhaustion required Brand to successfully challenge the Regents' decision
on the October 2002 grievance and the June 2003 grievances through a writ of
mandate before he was permitted to bring a suit for damages.
The doctrine of judicial exhaustion is premised on the concept of collateral
estoppel. "The underpinnings of this rule of exhaustion of judicial remedies . . . are
buried in the doctrine of res judicata or that portion of it known as collateral
estoppel . . . ." (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235,
241.) Thus, "while administrative exhaustion is a fundamental rule of procedure," "[j]
udicial exhaustion is a species of res judicata." (Ibid.) Under the doctrine of judicial
exhaustion, "collateral estoppel bars the religating of issues which were previously
resolved in an administrative hearing by an agency acting in a judicial capacity."
(Id. at p. 242.) "Unless the administrative decision is challenged, it binds the parties
on the issues litigated and if those issues are fatal to a civil suit, the plaintiff cannot
state a viable cause of action." (Id. at p. 243.)
As our Supreme Court has explained, "unless a party to a quasi-judicial proceeding
challenges the agency's adverse findings made in that proceeding, by means of a
mandate action in superior court, those findings are binding in later civil actions."
(Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70.) Pursuing a mandate
action is referred to in this context as "[e]xhaustion of judicial remedies" and "is
necessary to avoid giving binding 'effect to the administrative agency's decision,
because that decision has achieved finality due to the aggrieved party's failure to
pursue the exclusive judicial remedy for reviewing administrative action.' " (Id. at p.
70, italics omitted.)
However, not all administrative proceedings give rise to collateral estoppel.
"Collateral estoppel may be applied to decisions made by administrative agencies
'[w]hen an administrative agency is acting in a judicial capacity and resolves
disputed issues of fact properly before it which the parties have had an adequate
opportunity to litigate . . . .' " (People v. Sims (1982) 32 Cal.3d 468, 479 (Sims),
quoting United States v. Utah Constr. Co. (1966) 384 U.S. 394, 422.) When the
proceeding lacks a quasi-judicial quality, collateral estoppel does not arise. (See
Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 478.) Thus, as
our Supreme Court has explained, "For an administrative decision to have collateral
estoppel effect, it and its prior proceedings must possess a judicial character. . . .
Indicia of proceedings undertaken in a judicial capacity include a hearing before an
impartial decision maker; testimony given under oath or affirmation; a party's ability
to subpoena, call, examine, and cross-examine witnesses, to introduce
documentary evidence, and to make oral and written argument; the taking of a
record of the proceeding; and a written statement of reasons for the decision."
(Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921,
944 (Pacific Lumber), citation omitted.)
Here, the description of the proceedings set forth in Stewart's factfinding report
shows that the factfinding procedure did not have a judicial character. Specifically,
a hearing was not held, testimony was not given under oath, the parties were not
able to subpoena, call, examine, or cross-examine witnesses, and there is no
indication that a record of the proceedings was created. Instead, Stewart appears
to have conducted an investigation, consistent with step 2 in PPSM 70, in which she
interviewed witnesses outside of the presence of the parties, and relied on those
interviews, along with documentary evidence and oral statements submitted by the
parties to reach a decision. Such a procedure is not sufficient to give rise to
collateral estoppel. (See Pacific Lumber, supra, 37 Cal.4th at p. 944 [collateral
estoppel was not created when the parties were not given the opportunity to call
and cross-examine witnesses during the administrative proceeding].)
We accordingly conclude that because collateral estoppel did not arise from the
Regents' decision denying the October 2002 grievance and the June 2003
grievances, Brand was not required to challenge those decisions through a writ of
mandate prior to adjudicating a suit for damages.
D. Brand Was Required to Exhaust Administrative Remedies with Respect to
His Allegations Under Section 8547.11
Brand argues that the trial court erred in ruling that he was required to exhaust his
administrative remedies with respect to certain of his claims against the individual
defendants in the third cause of action brought pursuant to section 8547.11. Brand
contends that because there is no statement in section 8547.11 requiring that a
plaintiff first exhaust administrative remedies, he was not required to do so.
As a preliminary matter, we note that the trial court's ruling is not particularly clear
about the role that the concept of failure to exhaust administrative remedies played
in its decision to sustain the demurrer to the third cause of action. On that issue,
the trial court made the following statements. First, it stated, "As to the contention
that certain conduct occurring while [Brand] was employed by the University was not
discovered until after [Brand]'s termination, the Court finds such claims are barred
for [Brand]'s failure to pursue and exhaust his administrative remedies." Second,
summarizing its ruling the court stated, among other things, that "all three causes of
action are barred for failure to exhaust administrative and/or judicial remedies."
Reading the trial court's ruling as a whole, however, the order sustaining the
demurrer to the third cause of action appears to have been based primarily on the
decision that Brand had failed to exhaust his judicial remedies and was therefore
barred by collateral estoppel, not that Brand failed to exhaust his administrative
remedies.
Indeed, from our review of the record, it appears that the trial court could not have
properly cited Brand's failure to exhaust administrative remedies as a basis to
sustain a demurrer to the third cause of action. This is because there are clearly
some allegations within the third cause of action for which, according to the judicially
noticed documents, Brand did exhaust his administrative remedies when he
included those allegations in the September 2002 grievances, the October 2002
grievance, or the June 2003 grievances. "A demurrer does not lie to a portion of a
cause of action" (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682)
and "must dispose of an entire cause of action to be sustained." (Fremont
Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) Because
the failure to exhaust administrative remedies would not dispose of the entire cause
of action, the trial court erred to the extent that it sustained the third cause of action
on that basis.
On remand, the proper vehicle by which defendants could challenge particular
allegations as being barred by failure to exhaust administrative remedies would
include a motion to strike those allegations from the complaint. (Code Civ. Proc., §
436.) Because the issue is likely to arise on remand, we will discuss Brand's
contention that he was not required to exhaust his administrative remedies with
respect to any portion of his claims brought under section 8547.11. (Wachovia
Bank v. Lifetime Industries, Inc. (2006) 145 Cal.App.4th 1039, 1056 [addressing
issue to provide guidance on remand].)
As our Supreme Court explained in Campbell, supra, 35 Cal.4th 311, "the rule of
exhaustion of administrative remedies is well established in California jurisprudence
. . . . '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.' . . . The exhaustion rule extends to employees seeking
judicial review of an employer's administrative findings." (Id. at p. 321, citations &
fn. omitted.) Campbell further established that the administrative exhaustion
requirement need not be spelled out in the applicable statute under which the
plaintiff is attempting to file a lawsuit, but instead applies as a long-standing
common law principle unless the applicable statute provides otherwise. (Id. at p.
328 ["the Legislature's silence in the . . . statute makes the common law exhaustion
rule applicable here and requires employees to exhaust their internal administrative
remedies prior to filing a lawsuit"].) "[A]bsent a clear indication of legislative intent,
we should refrain from inferring a statutory exemption from our settled rule requiring
exhaustion of administrative remedies." (Id. at p. 333.)
Thus, because the text of section 8547.11 reveals no evidence that the Legislature
intended to depart from the common law requirement of exhaustion of administrative
remedies, that requirement applies here, and Brand must first exhaust his
administrative remedies with respect to his claims asserted under section 8547.11.
As Campbell recognized, "the administrative remedies exhaustion rule has several
exceptions, including, but not limited to . . . (1) when the administrative agency
cannot provide an adequate remedy, and (2) when the subject of controversy lies
outside the agency's jurisdiction." (Campbell, supra, 35 Cal.4th at p. 322.) As we
will explain, neither of these exceptions apply here (and Brand does not identify any
other possible exceptions). Specifically, a claim under section 8547.11 focuses on
an individual's interference with the right of an employee to make protected
disclosures. The UC Whistleblower Protection Policy covers "complaints of . . .
interference" filed by employees, which is defined in the policy as "[d]irect or indirect
use of authority to obstruct an individual's rights to make a protected disclosure."
Under the policy, the chancellor "determines the appropriate corrective action, if
any, which will be initiated against a University employee who is found to have . . .
interfered with an employee's . . . right to make a protected disclosure." Thus,
based on the UC Whistleblower Protection Policy, the subject of Brand's claims
appears to fall within the scope of the Regent's jurisdiction, and the Regents are
able to provide an adequate remedy.
We accordingly conclude that because the doctrine of administrative exhaustion
applies to Brand's claims brought under section 8547.11, Brand is barred from
asserting any allegations that he did not pursue in his internal complaints.
E. Additional Grounds for Demurrer Not Reached by the Trial Court
Defendants argue that the ruling on the demurrer to the third cause of action (i.e.,
the claim against the individual defendants for interference under § 8547.11)
should be affirmed on grounds not reached by the trial court. "A judgment of
dismissal after a demurrer has been sustained without leave to amend will be
affirmed if proper on any grounds stated in the demurrer, whether or not the court
acted on that ground." (Carman v. Alvord (1982) 31 Cal.3d 318, 324 (Carman).)
Thus, we will consider the additional grounds for the demurrer advanced below by
defendants, but not ruled on by the trial court, to determine whether they provide a
basis for affirming the judgment of dismissal.
As a preliminary matter, we note that defendants' appellate briefing urges us to
affirm the demurrer to the third cause of action based on several grounds not
presented to the trial court. Because our inquiry is whether there were any grounds
"stated in the demurrer" that could support the trial court's order sustaining the
demurer ruling, we do not consider those arguments. (Carman, supra, 31 Cal.3d
at p. 324.) The only additional grounds for demurrer to the third cause of action
asserted in the trial court, but not ruled on, were (1) that the allegations made in
paragraph 56 of the complaint were barred by the absolute privilege established by
Civil Code section 47, subdivision (b), which applies to communications made in the
course of official proceedings; and (2) that Melman has immunity under section
821.6 from allegations that he delayed in initiating the investigation of the October
2002 grievance.
We now turn to an examination of these arguments.
1. Claim of Privilege Under Civil Code Section 47, Subdivision (b)
Civil Code section 47, subdivision (b) creates an absolute privilege for, among other
things, a "publication or broadcast" made "in any . . . official proceeding authorized
by law." "The term 'official proceeding' extends to investigatory activities by public
agencies." (Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452,
478.) For example, statements made in the State Auditor's report into a
whistleblower's allegation of improper governmental activity were privileged
statements made in an "official proceeding." (Braun v. Bureau of State Audits
(1998) 67 Cal.App.4th 1382, 1388-1389.) "The privilege applies to any
communication made in such proceedings by a participant that has some
connection or logical relation to the proceedings." (Garamendi, at p. 478.) Thus, in
this case, statements made in connection with the official investigation into Brand's
allegations concerning Paau's misconduct, or into Brand's internal complaints that
he was retaliated against for his protected disclosures, would be covered by the
privilege.
Defendants argued that the third cause of action is subject to demurrer because
the allegations supporting that cause of action, which are set forth in paragraph 56
of the complaint, rely on statements protected by the privilege set forth Civil Code
section 47, subdivision (b). To analyze this argument, we will examine each of the
items that defendants contend is subject to the privilege.
Paragraph 56(a) of the complaint alleges that one day after Brand made a
protected disclosure about Paau's allegedly improper activities to a confidential
whistleblower hotline, Wyman, who allegedly had no role in investigating the hotline
report, improperly disclosed a transcript of the hotline report to Paau. The
paragraph further alleges that Paau and Wyman thereafter colluded to render a
false performance evaluation of Brand. Neither of these allegations seek to hold
any defendant liable for a communication made in connection with an official
proceeding, and thus the privilege set forth in Civil Code section 47, subdivision (b)
does not apply.
Paragraph 56(b) of the complaint alleges that after Brand started a dialog with an
attorney in the University of California Office of the President regarding Paau's
allegedly improper activities, Paau interfered and stopped the dialog by accusing
Brand of insubordination, and later used this instance of purported insubordination
to give Brand a negative performance review. This allegation also does not seek to
hold any defendant liable for a communication made in connection with an official
proceeding, and thus also is not covered by the privilege set forth in Civil Code
section 47, subdivision (b).
Paragraph 56(c) of the complaint has multiple subparts describing various alleged
impermissible conduct. First, Brand alleges that Paau threatened to humiliate him if
he did not resign, and despite Brand's request, Woods did not take action to protect
Brand. Second, Brand alleges that Paau continued to obstruct Brand's
performance of his employment duties, involving Macagno in some of that
obstruction; sought to falsify Brand's employment records; and ultimately terminated
Brand. Third, referring to Stewart's May 2004 factfinding report, Brand alleges that
Melman sought to discredit Brand through the factfinding report allegedly issued by
Melman's "organization," which allegedly contained a "blatant disregard of the
facts." Finally, Brand alleges that Paau made untrue statements in his letter of
intent to terminate Brand. We conclude that only one of these allegations seeks to
hold a defendant liable for a statement made in connection with an official
proceeding. Specifically, the statements made in Stewart's May 2004 factfinding
report, which Brand attempts to ascribe to Melman, were made in the course of an
official factfinding investigation by a participant in that investigation and thus are
covered by the privilege set forth in Civil Code section 47, subdivision (b).
2. Immunity Under Section 821.6
Paragraph 56(c)(8) of the complaint alleges that Melman improperly refused to
initiate the factfinding proceeding concerning the October 2002 grievance until
September 2003.
Defendants' demurrer argued that Melman has immunity for this conduct under
section 821.6, which states: "A public employee is not liable for injury caused by his
instituting or prosecuting any judicial or administrative proceeding within the scope
of his employment, even if he acts maliciously and without probable cause."
In opposition to the demurrer, Brand did not contend that section 821.6 was
inapplicable to an official's delay in instituting a factfinding proceeding. Indeed, we
note that the immunity afforded by section 821.6 is arguably broad enough to cover
Melman's alleged delay in instituting proceedings. " 'The immunity conferred by
section 821.6 is not limited to peace officers and prosecutors but has been
extended to public school officials . . . , heads of administrative departments . . . ,
social workers . . . , county coroners . . . , and members of county boards of
supervisors . . . .' " (Javor v. Taggart (2002) 98 Cal.App.4th 795, 808 (Javor).)
Further, "[s]ection 821.6 is not limited to conduct occurring during formal
proceedings. '[I]t also extends to actions taken in preparation for formal
proceedings. Because investigation is "an essential step" toward the institution of
formal proceedings, it "is also cloaked with immunity." ' " (Ibid.) It is also relevant
that " ' "[s]ection 821.6 is not limited to suits for damages for malicious prosecution,
although that is a principal use of the statute." ' " (Ibid.)
Instead of disputing the general applicability of section 821.6 to the situation
presented, Brand argued that Melman is not protected by immunity because he was
not acting within the scope of his employment as required by the plain language of
the statute. We reject this argument. The complaint alleges that Melman did not
initiate the investigation of the October 2002 grievance, although "the policy
required him to do so." (Italics added.) This is an implicit admission that institution
of the investigation was within Melman's official duties, and accordingly, that he was
acting within the scope of his employment in delaying the investigation. We thus
conclude that Melman's delay in instituting the factfinding proceeding was covered
by the immunity set forth in section 821.6.
Because the allegation in paragraphs 56(c)(8) and 56(c)(9) of the complaint are the
only allegations pertaining to Melman in the third cause of action, and we have
determined that both of those allegations fail (based on the privilege afforded by
Civil Code section 47, subdivision (b) and the immunity set forth in section 821.6,
respectively), we conclude that the third cause of action fails to state a claim against
Melman. We thus affirm the demurrer to the third cause of action only as to Melman.
DISPOSITION
Except for the trial court's ruling sustaining the demurrer to the third cause of action
against Melman and the ruling sustaining the demurrer to the second cause of
action, which Brand does not challenge on appeal, we reverse the judgment and
remand for proceedings consistent with this opinion. Each party to bear its own
costs on appeal.
IRION, J.
WE CONCUR
MCCONNELL, P. J.
HUFFMAN, J.
Filed 2/11/08
UCSD Medical Center Settles Lawsuit Over Hiring Practices
By Dorian Hargrove
San Diego Reader
January 5, 2012
The Justice Department announced that UCSD Medical Center has agreed to
change hiring practices at the Hillcrest facility and pay a $115,000 penalty in order
to resolve a complaint that the hospital excessively screened immigrant job-
applicants.
The complaint, filed by the Department of Justice on December 6, alleged the
medical center required non-citizen new hires to submit numerous documents in
hopes of verifying employment status, yet did not use the same standards for U.S.
citizens. The Immigration and Nationality Act prohibits employers from requesting an
"unfair" amount of documents based on the applicant's nationality or citizenship.
In addition to the fine, the Department of Justice stated the medical facility has
undergone additional training, and will train human resource employees proper
hiring practices.
“Federal law protects people who are authorized to work in the United States from
facing barriers and discrimination when they are seeking employment,” stated
Assistant Attorney General with the Civil Rights Division, Thomas E. Perez. “I
commend medical center officials on their cooperation in working with us to reach
this resolution."
Medical schools,
including UCSD, may
be fostering
dishonesty and
unethical behavior
among future doctors
Mayo Clinic study: Med
school burnout linked to
unprofessional behavior
2010-09-15
(Press-News.org)
A Mayo Clinic study involving
seven major medical schools
shows a majority of medical
students surveyed suffer from
burnout and that those
students were more likely to
cheat or be dishonest in
relation to patient care. The
findings appear in this week's
issue of JAMA.
The study was based on
anonymous responses from
4,400 students. Just over half
(53 percent) the students
responding were found to
have burnout. Academic
cheating was relatively rare,
but roughly 40 percent of
third- and fourth-year
students admitted to
some form of
unprofessional conduct
in relation to patient
care, such as reporting a
physical examination
finding as normal when
they had not performed
the examination.
The researchers say that the
students know the behavior is
inappropriate and that fact
may indicate "some elements
in the learning process"
foster dishonesty.
The findings also showed that
burned-out medical students
were less likely to hold
altruistic attitudes about a
doctor's role in society
including a lower likelihood of
wanting to provide medical
care for the underserved.
"Our findings suggest future
physicians' altruism,
professionalism, and
commitment to serve society
are eroded by burnout," says
Liselotte Dyrbye, M.D., Mayo
Clinic internist and first author
of the study. "This is
concerning since burnout is a
pervasive problem among
medical students, residents,
and physicians in practice. As
our nation reforms its health
care system, it is essential
that physicians advocate for
patients, promote the public
health, and reduce barriers to
equitable health care.
Burnout appears to be a
threat to this process"
Little Understanding of
Conflict of Interest
At a time when issues
concerning professional
conflicts are a national focus,
the researchers discovered
that only 14 percent of the
students had opinions on
relationships with industry
that aligned with the
American Medical Association
policy regarding appropriate
interactions between
physicians and
pharmaceutical companies.
The authors suggest that
schools could "do a better job
teaching students about
conflict of interest and
appropriate relationships with
industry."
INFORMATION:
Students surveyed in the
study attended Mayo Medical
School, the University of
Washington, the University of
Minnesota, the University of
Alabama, the University
of California at San
Diego (UCSD), the
University of Chicago Pritzker
School of Medicine, and the
Uniformed Services University
of the Health Sciences.
Co-authors of the study
include F. Stanford Massie,
Jr, M.D., University of
Alabama; Anne Eacker, M.D.,
University of Washington;
William Harper, M.D.,
University of Chicago Pritzker
School of Medicine; David
Power, M.D., M.P.H.,
University of Minnesota;
Steve Durning, M.D.,
Uniformed Services University
of the Health Sciences;
Christine Moutier, M.D.,
UCSD; and Matthew Thomas,
M.D., Daniel Satele, Jeff
Sloan, Ph.D., and Tait
Shanafelt, M.D., all of Mayo
Clinic. Mayo Clinic supported
the research.
including UCSD, may
be fostering
dishonesty and
unethical behavior
among future doctors
Mayo Clinic study: Med
school burnout linked to
unprofessional behavior
2010-09-15
(Press-News.org)
A Mayo Clinic study involving
seven major medical schools
shows a majority of medical
students surveyed suffer from
burnout and that those
students were more likely to
cheat or be dishonest in
relation to patient care. The
findings appear in this week's
issue of JAMA.
The study was based on
anonymous responses from
4,400 students. Just over half
(53 percent) the students
responding were found to
have burnout. Academic
cheating was relatively rare,
but roughly 40 percent of
third- and fourth-year
students admitted to
some form of
unprofessional conduct
in relation to patient
care, such as reporting a
physical examination
finding as normal when
they had not performed
the examination.
The researchers say that the
students know the behavior is
inappropriate and that fact
may indicate "some elements
in the learning process"
foster dishonesty.
The findings also showed that
burned-out medical students
were less likely to hold
altruistic attitudes about a
doctor's role in society
including a lower likelihood of
wanting to provide medical
care for the underserved.
"Our findings suggest future
physicians' altruism,
professionalism, and
commitment to serve society
are eroded by burnout," says
Liselotte Dyrbye, M.D., Mayo
Clinic internist and first author
of the study. "This is
concerning since burnout is a
pervasive problem among
medical students, residents,
and physicians in practice. As
our nation reforms its health
care system, it is essential
that physicians advocate for
patients, promote the public
health, and reduce barriers to
equitable health care.
Burnout appears to be a
threat to this process"
Little Understanding of
Conflict of Interest
At a time when issues
concerning professional
conflicts are a national focus,
the researchers discovered
that only 14 percent of the
students had opinions on
relationships with industry
that aligned with the
American Medical Association
policy regarding appropriate
interactions between
physicians and
pharmaceutical companies.
The authors suggest that
schools could "do a better job
teaching students about
conflict of interest and
appropriate relationships with
industry."
INFORMATION:
Students surveyed in the
study attended Mayo Medical
School, the University of
Washington, the University of
Minnesota, the University of
Alabama, the University
of California at San
Diego (UCSD), the
University of Chicago Pritzker
School of Medicine, and the
Uniformed Services University
of the Health Sciences.
Co-authors of the study
include F. Stanford Massie,
Jr, M.D., University of
Alabama; Anne Eacker, M.D.,
University of Washington;
William Harper, M.D.,
University of Chicago Pritzker
School of Medicine; David
Power, M.D., M.P.H.,
University of Minnesota;
Steve Durning, M.D.,
Uniformed Services University
of the Health Sciences;
Christine Moutier, M.D.,
UCSD; and Matthew Thomas,
M.D., Daniel Satele, Jeff
Sloan, Ph.D., and Tait
Shanafelt, M.D., all of Mayo
Clinic. Mayo Clinic supported
the research.
Alarming Complaint Against
UC-San Diego
By RENI ANGUELOVA
Courthouse News Service
October 02, 2014
SAN DIEGO (CN) - The
University of California at San
Diego fired a multiracial
employee for complaining of
her boss's racially and
sexually offensive behavior,
the woman claims in court.
Grace Aspiras sued the
University of California and
her former boss, George
Hanson, an academic
coordinator, on Sept. 30 in
Superior Court.
Aspiras, who is of Chinese,
Filipina and Spanish descent,
says she was hired in 2007
as a program representative
in UCSD's Basic Writing
Program.
"The vast majority of the
students admitted into the
Basic Writing Program are
international students, many
of whom are of Asian
descent," she says in the
lawsuit.
The 14-page complaint claims
that Hanson made a litany of
comments offensive to women
and minorities.
Among them, according to the
complaint:
that UCSD is "'a whore that
opened its legs to allow
international students to
enroll' and as a 'prostitute
that spreads its legs for
international tuition'";
"that the Asian students who
were dismissed by failing to
satisfy the Entry
Level Writing Requirement
would all end up 'working at
their parents' noodle shop'";
"that 'dismissed Korean
students will end up working
at Kia or Hyundai; dismissed
Chinese students will end up
working at Sony; and
dismissed Japanese students
will end up working at
Toyota'";
"that 'Chinese students cheat'
and 'the Chinese are known
for cheating'".
Finally, Aspiras says, Hanson
wrote a grossly offensive
sexual essay, "purportedly
about writing style," which
"served no educational or
instructional purpose," and
"distributed the essay to
every instructor in the Basic
Writing Program."
The lawsuit claims that
Hanson's essay "contained
direct quotations such as 'a
jet of water in my gaping,
swollen pussy,' 'hanging on to
a good size breast,' '... the
use to which, for years, I put
my anus and, as frequently, if
not more so, my vagina,' 'had
a touch of the clap,' 'I chose
to fuck only with my ass,'
'even fucking can be boring,'
and 'sex is as natural as
breathing.'"
Aspiras claims that Hanson
circulated "numerous other
essays" of a similar kind,
none of which were
necessary for instruction.
She claims that UCSD failed
to take any disciplinary action
despite her repeated
complaints but retaliated by
firing her on false claims that
she helped students cheat on
exams.
She seeks punitive damages
for sexual harassment,
wrongful firing, gender
discrimination, racial
discrimination, negligent
supervision and intentional
infliction of emotional distress.
She is represented by Frank
Polek.
UC-San Diego
By RENI ANGUELOVA
Courthouse News Service
October 02, 2014
SAN DIEGO (CN) - The
University of California at San
Diego fired a multiracial
employee for complaining of
her boss's racially and
sexually offensive behavior,
the woman claims in court.
Grace Aspiras sued the
University of California and
her former boss, George
Hanson, an academic
coordinator, on Sept. 30 in
Superior Court.
Aspiras, who is of Chinese,
Filipina and Spanish descent,
says she was hired in 2007
as a program representative
in UCSD's Basic Writing
Program.
"The vast majority of the
students admitted into the
Basic Writing Program are
international students, many
of whom are of Asian
descent," she says in the
lawsuit.
The 14-page complaint claims
that Hanson made a litany of
comments offensive to women
and minorities.
Among them, according to the
complaint:
that UCSD is "'a whore that
opened its legs to allow
international students to
enroll' and as a 'prostitute
that spreads its legs for
international tuition'";
"that the Asian students who
were dismissed by failing to
satisfy the Entry
Level Writing Requirement
would all end up 'working at
their parents' noodle shop'";
"that 'dismissed Korean
students will end up working
at Kia or Hyundai; dismissed
Chinese students will end up
working at Sony; and
dismissed Japanese students
will end up working at
Toyota'";
"that 'Chinese students cheat'
and 'the Chinese are known
for cheating'".
Finally, Aspiras says, Hanson
wrote a grossly offensive
sexual essay, "purportedly
about writing style," which
"served no educational or
instructional purpose," and
"distributed the essay to
every instructor in the Basic
Writing Program."
The lawsuit claims that
Hanson's essay "contained
direct quotations such as 'a
jet of water in my gaping,
swollen pussy,' 'hanging on to
a good size breast,' '... the
use to which, for years, I put
my anus and, as frequently, if
not more so, my vagina,' 'had
a touch of the clap,' 'I chose
to fuck only with my ass,'
'even fucking can be boring,'
and 'sex is as natural as
breathing.'"
Aspiras claims that Hanson
circulated "numerous other
essays" of a similar kind,
none of which were
necessary for instruction.
She claims that UCSD failed
to take any disciplinary action
despite her repeated
complaints but retaliated by
firing her on false claims that
she helped students cheat on
exams.
She seeks punitive damages
for sexual harassment,
wrongful firing, gender
discrimination, racial
discrimination, negligent
supervision and intentional
infliction of emotional distress.
She is represented by Frank
Polek.
Daniel W. Park
Chief Campus
Counsel
(858) 822-1236
dpark@ucsd.edu
Reporting to the Chancellor and
to the Vice President for Legal
Affairs & General Counsel, Dan
is the chief attorney for
the UC San Diego
campus. Dan provides legal
advice, retains outside counsel,
manages litigation, reviews
university policies, and works
closely with other administrative
offices to ensure legal
compliance and to respond to
disputes. Dan is a member of
the Chancellor’s Cabinet and the
UC General Counsel’
s systemwide
leadership team.
--downloaded Jan. 15, 2015
Medical Center Risk
Managers
downloaded Jan 15, 2015
UC San Diego
Medical Center
Belinda Hein, Director
of Risk Services
Phone: (619) 471-0568
Fax: (619) 543-6433
California State Bar: Hein,
Belinda Marie Active
149319 San Diego
December 1990 Cal Western
Law School
Health System
Chief Counsel
DOWNLOADED JAN 15, 2015
Jane E. Boubelik
Chief Health Sciences
Counsel, UCLA Health
System
Phone: (310) 794-3138
Fax: (310) 794-3313
Email Jane Boubelik
Anna Orlowski
Chief Health System
Counsel, UC Davis Medical
Center
Phone: (916) 734-2288
Fax: (916) 734-0222
Peter Schneider
Chief Health Sciences Counsel,
UC Irvine
Phone: (949) 824-8343, (714)
456-2297
Fax: (949) 824-8654, (714)
456-2298
UCSD v. USC and Dr. Paul Aisen
Some universities in California and North Carolina want to prevent
medical faculty from moving to other health systems
Is this an illegal conspiracy--or the future of medicine that UCSD is
aggressively seeking to implement?
Is this the future in California if UCSD wins its poaching lawsuit against Dr. Paul Aisen's
regarding Aisen's decision to transfer his Alzheimer's study to USC? Is it unlawful
restraint of trade? Science magazine reports on what happens when health systems
collude to stop their employees from moving to other institutions.
“[L]ateral moves of faculty between Duke and UNC are not permitted.”
–UNC's chief of cardiothoracic imaging
An academic 'poaching' lawsuit from a scientist who didn’t move
By Beryl Lieff Benderly
Science
September 10, 2015
In August, we reported on the lawsuit brought by the University of California, San Diego
(UCSD), against the University of Southern California (USC) in Los Angeles, in an effort
to stop USC’s alleged attempt to bring a multimillion-dollar Alzheimer’s disease research
project along with its new recruit, neuroscientist Paul Aisen, from UCSD to USC. We
noted that though some observers view universities’ efforts to bring major researchers
to their campuses from elsewhere as effective recruiting, others see it as harmful
poaching.
In North Carolina, meanwhile, another scientist’s effort to move from Duke University in
Durham to the University of North Carolina (UNC), Chapel Hill, has also resulted in a
lawsuit, but for an entirely different reason. Danielle Seaman, an assistant professor of
radiology at Duke, claims that “an illegal conspiracy” among Duke, UNC, and the two
universities’ health systems not to raid each other’s talent barred her from consideration
for an advertised opening at UNC, according to the complaint filed with the court.
Allegedly, the institutions’ goal was to “suppress the compensation of their employees,”
according to the complaint. “Without the knowledge or consent of their employees,
[Duke’s] senior administrators and deans entered into express agreements [with UNC] to
eliminate or reduce competition … for skilled medical labor” by not “hir[ing] or attempt
[ing] to hire” from each other. This deal, the complaint argues, constitutes an unlawful
restraint of trade.
When UNC advertised a position in cardiothoracic imaging, the complaint claims,
Seaman wrote to the division chief to express interest in applying. As quoted in the
complaint, he wrote back saying “I agree that you would be a great fit. … Unfortunately, I
just received confirmation today from the Dean’s office that lateral moves of faculty
between Duke and UNC are not permitted. There is reasoning for this ‘guideline’ which
was agreed upon between the deans of UNC and Duke a few years back. I hope you
understand.” (Emphasis is in the original.) Seaman did not understand, so she wrote
back to ask about this “reasoning.” The guideline arose, the division chief allegedly
replied, “in response to an attempted recruitment by Duke a couple of years ago of the
entire UNC bone marrow transplant team; UNC had to generate a large retention
package to keep the team intact.” (Emphasis is in the original.)...
[See the original complete article with lots of links.]
Some universities in California and North Carolina want to prevent
medical faculty from moving to other health systems
Is this an illegal conspiracy--or the future of medicine that UCSD is
aggressively seeking to implement?
Is this the future in California if UCSD wins its poaching lawsuit against Dr. Paul Aisen's
regarding Aisen's decision to transfer his Alzheimer's study to USC? Is it unlawful
restraint of trade? Science magazine reports on what happens when health systems
collude to stop their employees from moving to other institutions.
“[L]ateral moves of faculty between Duke and UNC are not permitted.”
–UNC's chief of cardiothoracic imaging
An academic 'poaching' lawsuit from a scientist who didn’t move
By Beryl Lieff Benderly
Science
September 10, 2015
In August, we reported on the lawsuit brought by the University of California, San Diego
(UCSD), against the University of Southern California (USC) in Los Angeles, in an effort
to stop USC’s alleged attempt to bring a multimillion-dollar Alzheimer’s disease research
project along with its new recruit, neuroscientist Paul Aisen, from UCSD to USC. We
noted that though some observers view universities’ efforts to bring major researchers
to their campuses from elsewhere as effective recruiting, others see it as harmful
poaching.
In North Carolina, meanwhile, another scientist’s effort to move from Duke University in
Durham to the University of North Carolina (UNC), Chapel Hill, has also resulted in a
lawsuit, but for an entirely different reason. Danielle Seaman, an assistant professor of
radiology at Duke, claims that “an illegal conspiracy” among Duke, UNC, and the two
universities’ health systems not to raid each other’s talent barred her from consideration
for an advertised opening at UNC, according to the complaint filed with the court.
Allegedly, the institutions’ goal was to “suppress the compensation of their employees,”
according to the complaint. “Without the knowledge or consent of their employees,
[Duke’s] senior administrators and deans entered into express agreements [with UNC] to
eliminate or reduce competition … for skilled medical labor” by not “hir[ing] or attempt
[ing] to hire” from each other. This deal, the complaint argues, constitutes an unlawful
restraint of trade.
When UNC advertised a position in cardiothoracic imaging, the complaint claims,
Seaman wrote to the division chief to express interest in applying. As quoted in the
complaint, he wrote back saying “I agree that you would be a great fit. … Unfortunately, I
just received confirmation today from the Dean’s office that lateral moves of faculty
between Duke and UNC are not permitted. There is reasoning for this ‘guideline’ which
was agreed upon between the deans of UNC and Duke a few years back. I hope you
understand.” (Emphasis is in the original.) Seaman did not understand, so she wrote
back to ask about this “reasoning.” The guideline arose, the division chief allegedly
replied, “in response to an attempted recruitment by Duke a couple of years ago of the
entire UNC bone marrow transplant team; UNC had to generate a large retention
package to keep the team intact.” (Emphasis is in the original.)...
[See the original complete article with lots of links.]
Federal complaint
David Loy (SBN 229235)
ACLU FOUNDATION OF
SAN DIEGO
& IMPERIAL COUNTIES
P.O. Box 87131
San Diego, CA 92138-7131
Telephone: (619) 232-2121
Facsimile: (619) 232-0036
davidloy@aclusandiego.org
Ryan T. Darby, Esq. (SBN 264357)
THE LAW OFFICE OF
RYAN T. DARBY
525 B Street, Suite 1500
San Diego, CA 92101
Telephone: (619) 858-4766
Facsimile: (619) 243-7226
darby@darby.law
Attorneys for Plaintiff
THE KOALA
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF
CALIFORNIA
THE KOALA, an unincorporated
student association,
Plaintiff,
v.
PRADEEP KHOSLA, in his official
capacity as Chancellor of the
University of California, San Diego;
DOMINICK SUVONNASUPA, in
his official capacity as President of
the Associated Students of the
University of California, San Diego;
and
TRISTAN BRITT, in
his official capacity as Financial
Controller of the
Associated Students of the
University
of California, San Diego,
Defendants.
Case No.:
VERIFIED COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
1. First Amendment Violation
(Freedom of the Press)
2. First Amendment Violation
(Freedom of Speech)
Plaintiff The Koala brings this First
Amendment case against officers of the
University of California, San Diego
(“UCSD”), and the Associated Students
of
UCSD (“Student Government”), in their
official capacities, and alleges as
follows:
INTRODUCTION AND
NATURE OF THE ACTION
1.
This case seeks to prevent
Defendants from
continuing
to violate the
First Amendment rights of student
organizations
such as
The Koala
.
2.
The Student Government
unconstitutionally
eliminated
funding for
publication of student
print media
while continuing to fund other speech
and
activities of
student organizations.
3.
The Student Government
engaged in unconstitutional viewpoint
discrimination by
eliminating
funding for publication of student
pri
nt media
because of the viewpoint of
The Koala
’s
speech.
4.
The Koala
seeks declaratory and injunctive relief
to restore
the process
for student organizations to seek and
obtain
funding
for publication of student print
media
and prevent
Defendants from contin
uing to violate
the First Amendment
.
JURISDICTION AND VENUE
5.
The Court has jurisdiction under 28 U.S.
C. § 1331 because this action
arises under the United States
Constitution
and 42 U.S.C. § 1983
.
6.
The Court may grant declaratory and
injunctive relief for
constitutional
violations pursuant to 28 U.S.C. § 2201
and Federal Rules of Civil Procedure 57
and 65.
7.
Venue is proper in this district under 28
U.S.C. § 1391(b) because the
events that give rise to this action
occurred within this district.
8.
The Court has
personal jurisdiction over Defendants,
who
reside in or
have substantial, continuing, and
systematic contact with
the state of California.
PARTIES
9.
The Koala
is an unincorporated, expressive
student association
and
registered student organization
at
UCSD
.
10.
The University of California (“UC”) is a
public trust administered by
the Regents of the University of
California. Calif. Const., Art. IX, § 9
.
The
President of the University of California
serves as the executive head of the
University. Board of Rege
nts Standing Order 100.4(a).
The
Regents have created
several
UC
campuses, including UCSD.
11.
Defendant Pradeep Khosla is the
Chancellor of
UCSD
and
responsible
for the organization, operation, and
internal administration of the campus.
Board of
Regents
Standing Order 100.6(a).
12.
In particular, t
he Chancellor is responsible for
ensuring that the
allocation of funds by
UCSD’s s
tudent
g
overnment
“is consistent with legal
requirements and University policies
and procedures.”
UC Policy on Student
Governments
¶ 67.00.
13.
The Student Government is the official
student government for UCSD
and
an official unit of the
University of California
exercis
ing
authority
over
student
affairs with powers delegated by the
Regents, President, and Chancellor.
UC
Regents Policy
3301.
14.
Defendant Dominick Suvonnasupa is
the President of the Student
Government. The President is the
chief executive officer of the Student
Government.
Student Government Constitution
, Art. VI, §§ 1(a), 1(k).
15.
Defendant Tristan Britt is the Financial
Controller of the Student
Government
. The Financial Controller is
responsible for the Student
Government’s
allocation and expenditures of funds,
including but not limited to funding of
speech
by registered
student
organizations from revenue generated
by c
ampus activity fees.
Id.
§
4(b).
16.
All Defendants are sued in their official
capacities
for declaratory and
injunctive relief
.
The statements of UCSD
administrators,
Student Government
officials
, and other individuals
discussed in this complaint are taken
from public
records disclosed by UCSD to Plaintiff
under the California Public Records Act
, or
from other official records of UCSD or
the Student Government
FACTUAL ALLEGATIONS
A.
University of California policy
establishes a limited public forum
for
supporting student speech on a wide
range of issues, with clear
disclaimers of official endorsement and
a process to issue pro rata
refunds to students who object to
certain speech...
SECOND CLAIM
42 U.S.C. § 1983 (First
Amendment: Freedom
of Speech)
86. The allegations of
paragraphs 1 to 85
above are incorporated by
reference as though set forth
fully herein.
87.Defendants violated and
are continuing to violate the
Free Speech Clause of the
First Amendment by
categorically refusing to
provide campus activity fee
funding for the publication of
student print media because of
the viewpoint of The Koala’s
speech.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff
respectfully requests the
Court to enter judgment
against Defendants as
follows:
1. Preliminarily and
permanently enjoining
Defendants
and their officers, agents,
servants,
employees, and attorneys,
and anyone in active
concert or
participation with
any of the foregoing
persons, from
categorically refusing to
provide campus activity fee
funding for the publication
of student media, or
otherwise preventing,
impeding, or otherwise
interfering with Plaintiff’s
First Amendment rights to
freedom of the press and to
speech;
2. Declaring Defendants’
conduct to be unlawful;
3. Awarding Plaintiff costs
and attorney fees as
authorized by Fed. R.
Civ. P. 54, 42 U.S.C. § 1988,
and/or any other applicable
law;
4.Awarding other such relief
as the Court deems proper.
Dated: May 31, 2016
Respectfully submitted,
By:
David Loy
davidloy@aclusandiego.org
Ryan T. Darby
darby@darby.law
Attorneys for Plaintiff
What's wrong with UCSD
administrators?
We need more speech, not less, to
address the undercurrents of hate in
our schools.
At the same time, what's
wrong with the ACLU?
The ACLU's David Loy demonstrates an
alarming pattern of suppressing free
speech regarding his public school pals
while protesting hate speech in other
schools.
administrators?
We need more speech, not less, to
address the undercurrents of hate in
our schools.
At the same time, what's
wrong with the ACLU?
The ACLU's David Loy demonstrates an
alarming pattern of suppressing free
speech regarding his public school pals
while protesting hate speech in other
schools.
ACLU sues UCSD over free
speech rights May 2016
Federal complaint
San Diego ACLU's David Loy
says UCSD cut student
newspaper funding to curtail
speech
Koala vs. Khosla:
Offensive UC Newspaper
Demands Funding
By JON CHOWN
Courthouse News
June 02, 2016
SAN DIEGO (CN) — The Koala, a
satirical student newspaper whose
motto is "The Worst in Collegiate
Journalism Since 1982!" claims the
University of California San Diego cut
its funding to punish it for its speech.
Koala, primarily distributed on the UC
San Diego campus, is one of several
publications supported by the
Associated Students of UCSD. It
regularly satirizes issues involving
ethnicity, sexual orientation, religion
and even people with disabilities.
Its content has drawn complaints for
years, but it's managed to survive. But
administrators' decision last year cut
all funding to student publications may
have killed it, unless The Koala can
win what it has proclaimed "the trial of
the fucking century."
Its Monday complaint in Federal Court
seeks an injunction against UCSD
Chancellor Pradeep Khosla,
Associated Students of UCSD
President Dominick Suvonnasupa, the
Associated Students of UCSD
Financial Controller Tristan Britt.
"There are two core issues: freedom of
the press and freedom of speech,"
The Koala's attorney David Loy said.
"The university violated both by
discriminating against the student
press and discriminating against the
viewpoint of one student newspaper."
Attorney Loy, with the ACLU
Foundation of San Diego and Imperial
Counties, said the ACLU took the
Koala's case because of the speech
and free press issues, and that the
case is clearly laid out in emails and
online reports.
The college has tried to shut down The
Koala before. In 2002, it tried to revoke
its registration as a student
organization after a member took
photos of another student
organization's meeting and made fun
of it.
In 2010, all student print media were
suspended after The Koala broadcast
an invitation for an event called "The
Compton Cookout," and asked
participants to wear chains, cheap
clothes and be loud. Women were told
to dress up like "ghetto chicks." That
stirred outrage among the African-
American community on campus.
E-mail threads cited in the complaint
reveal a discussion between
administrators on how to quash the
paper, dating back to the 2010
incident.
The Koala's Nov. 15, 2016 story,
"UCSD Unveils New Dangerous Space
on Campus" uncorked a new flood of
complaints and a renewed effort to
stop it.
The story mocked UCSD's new "safe
spaces" where students allegedly are
excused from restrictions on
insensitivity.
The predictably offensive story
reported: "Located in the center of
Library Walk, the new Dangerous
Space is the ideal place for students to
do whatever the hell they want," then
quoted a fictitious "Asian nerd," F. Yu,
who enjoyed necrophilia.
In the interest of fair and balanced
reporting, perhaps, the complaint cites
15 student complaints against the
Koala, including: "Knowing that my
school is funding such a heinous
magazine is not okay and I stand by
my fellow students to get it off this
campus. Please cease funding for this
awful publication."
And: "I would like to see UCSD
dismantle The Koala immediately."
And: "Pull the funds, and make them
turn to personal donations if they way
to continue this nonsense. They have
the UC stamp/icon on the paper. UCSD
already has a bad racial climate and
this is an obvious contributor that can
be eradicated."
And: "I would like the University to shut
down the koala newspaper and the
creators of the newspaper should be
punished by their college deans."
Two days after the "Dangerous Space"
story was published, Chancellor
Khosla and other top administrators
denounced The Koala "profoundly
repugnant, repulsive, attacking and
cruel." The UC San Diego Associated
Student Council quickly decided to cut
funding to all student-run publications.
Another UCSD student newspaper,
The Guardian, reported that
Associated Student Council President
Dominick Suvonnasuna said the
administrators' attack had no bearing
on the Student Council's quick
decision to cut funding, that it was a
coincidence.
The Koala doubts that.
"However offensive or outrageous it
may have been, the article remains
protected free speech on topical
issues of public concern," the
complaint states.
The Koala wants the university
enjoined from refusing to provide
funding for campus publications or
"otherwise interfering" with the First
Amendment, plus attorneys' fees and
costs.
speech rights May 2016
Federal complaint
San Diego ACLU's David Loy
says UCSD cut student
newspaper funding to curtail
speech
Koala vs. Khosla:
Offensive UC Newspaper
Demands Funding
By JON CHOWN
Courthouse News
June 02, 2016
SAN DIEGO (CN) — The Koala, a
satirical student newspaper whose
motto is "The Worst in Collegiate
Journalism Since 1982!" claims the
University of California San Diego cut
its funding to punish it for its speech.
Koala, primarily distributed on the UC
San Diego campus, is one of several
publications supported by the
Associated Students of UCSD. It
regularly satirizes issues involving
ethnicity, sexual orientation, religion
and even people with disabilities.
Its content has drawn complaints for
years, but it's managed to survive. But
administrators' decision last year cut
all funding to student publications may
have killed it, unless The Koala can
win what it has proclaimed "the trial of
the fucking century."
Its Monday complaint in Federal Court
seeks an injunction against UCSD
Chancellor Pradeep Khosla,
Associated Students of UCSD
President Dominick Suvonnasupa, the
Associated Students of UCSD
Financial Controller Tristan Britt.
"There are two core issues: freedom of
the press and freedom of speech,"
The Koala's attorney David Loy said.
"The university violated both by
discriminating against the student
press and discriminating against the
viewpoint of one student newspaper."
Attorney Loy, with the ACLU
Foundation of San Diego and Imperial
Counties, said the ACLU took the
Koala's case because of the speech
and free press issues, and that the
case is clearly laid out in emails and
online reports.
The college has tried to shut down The
Koala before. In 2002, it tried to revoke
its registration as a student
organization after a member took
photos of another student
organization's meeting and made fun
of it.
In 2010, all student print media were
suspended after The Koala broadcast
an invitation for an event called "The
Compton Cookout," and asked
participants to wear chains, cheap
clothes and be loud. Women were told
to dress up like "ghetto chicks." That
stirred outrage among the African-
American community on campus.
E-mail threads cited in the complaint
reveal a discussion between
administrators on how to quash the
paper, dating back to the 2010
incident.
The Koala's Nov. 15, 2016 story,
"UCSD Unveils New Dangerous Space
on Campus" uncorked a new flood of
complaints and a renewed effort to
stop it.
The story mocked UCSD's new "safe
spaces" where students allegedly are
excused from restrictions on
insensitivity.
The predictably offensive story
reported: "Located in the center of
Library Walk, the new Dangerous
Space is the ideal place for students to
do whatever the hell they want," then
quoted a fictitious "Asian nerd," F. Yu,
who enjoyed necrophilia.
In the interest of fair and balanced
reporting, perhaps, the complaint cites
15 student complaints against the
Koala, including: "Knowing that my
school is funding such a heinous
magazine is not okay and I stand by
my fellow students to get it off this
campus. Please cease funding for this
awful publication."
And: "I would like to see UCSD
dismantle The Koala immediately."
And: "Pull the funds, and make them
turn to personal donations if they way
to continue this nonsense. They have
the UC stamp/icon on the paper. UCSD
already has a bad racial climate and
this is an obvious contributor that can
be eradicated."
And: "I would like the University to shut
down the koala newspaper and the
creators of the newspaper should be
punished by their college deans."
Two days after the "Dangerous Space"
story was published, Chancellor
Khosla and other top administrators
denounced The Koala "profoundly
repugnant, repulsive, attacking and
cruel." The UC San Diego Associated
Student Council quickly decided to cut
funding to all student-run publications.
Another UCSD student newspaper,
The Guardian, reported that
Associated Student Council President
Dominick Suvonnasuna said the
administrators' attack had no bearing
on the Student Council's quick
decision to cut funding, that it was a
coincidence.
The Koala doubts that.
"However offensive or outrageous it
may have been, the article remains
protected free speech on topical
issues of public concern," the
complaint states.
The Koala wants the university
enjoined from refusing to provide
funding for campus publications or
"otherwise interfering" with the First
Amendment, plus attorneys' fees and
costs.
UCLA
UCLA
UCLA Radiology and
Medical Records
UCLA CareConnect
UCLA Compliance
Dr. Robert Pedowitz
wins $10 million for
retaliation by UCLA for
blowing whistle on
industry payments to
doctors
Dr. Eugene
Washington, dean of
medical school
Dr. Andrew Saxon,
author of paper on
harmlessness of
indoor mold
UCLA conflict of
interest
UCLA Cull case
UCLA culture:
contempt and racism?
UCLA Dermatology
UCLA Patient
Advocates
UCLA Patrick Harron
to be arraigned in
burning death in
chemistry lab
UCLA contract
with Kaiser for
kidney transplants
UCLA Radiology and
Medical Records
UCLA CareConnect
UCLA Compliance
Dr. Robert Pedowitz
wins $10 million for
retaliation by UCLA for
blowing whistle on
industry payments to
doctors
Dr. Eugene
Washington, dean of
medical school
Dr. Andrew Saxon,
author of paper on
harmlessness of
indoor mold
UCLA conflict of
interest
UCLA Cull case
UCLA culture:
contempt and racism?
UCLA Dermatology
UCLA Patient
Advocates
UCLA Patrick Harron
to be arraigned in
burning death in
chemistry lab
UCLA contract
with Kaiser for
kidney transplants
Does it have to get as bad
as the VA before doctors at
Kaiser, UCSD and UCLA and
other powerful members of the
medical establishment will
come forward as
whistle-blowers?
as the VA before doctors at
Kaiser, UCSD and UCLA and
other powerful members of the
medical establishment will
come forward as
whistle-blowers?
MORE COURT DOCUMENTS
ACLU v UCSD re Koala
ACLU v UCSD re Koala