Acuna v. Regents of University of California

Page 388

65 Cal.Rptr.2d 388

56 Cal.App.4th 639, 76 Fair Empl.Prac.Cas. (BNA) 140,

71 Empl. Prac. Dec. P 44,901, 119 Ed. Law Rep. 557,

97 Cal. Daily Op. Serv. 5754,

97 Daily Journal D.A.R. 9340

Rodolfo F. ACUNA, Plaintiff and Appellant, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants and Respondents.

No. B102541.

Court of Appeal, Second District, Division 6, California.

June 25, 1997.

Review Denied Oct. 1, 1997.

Moises Vazquez, Silvia R. Aargueta, ACLU Foundation of Southern California; Robert Racine, for Plaintiff and Appellant.

James E. Holst, John F. Lundberg, David M. Birnbaum, Office of the General Counsel, The Regents of the University of California, Judith Droz Keyes, Ian P. Fellerman, Corbett & Kane, Emeryville, for Defendants and Respondents.

YEGAN, Associate Justice.

Roldofo F. Acuna appeals from a judgment of dismissal entered after the trial court granted motions for summary adjudication and summary judgment on his action for employment discrimination. The trial court ruled that the cause of action for violation of appellant's speech rights (Cal. Const., art. I, § 2) was time barred, and the remaining causes of action for race, ethnicity, and age discrimination were barred by a federal judgment. We affirm.

Facts

In 1990, appellant, a scholar in Chicano studies, applied for a tenured faculty position at the University of California Santa Barbara (UCSB). UCSB Chancellor Barbara Uehling denied the application on June 19, 1991 based on the recommendations of the University Provost David Sprecher, the Academic Senate Committee on Academic Personnel, Associate Vice Chancellor Julius Zelmanowitz, and Vice Chancellor Gordon Hammes.

On September 25, 1992, appellant filed suit against the Regents of the University of California (Regents) and university employees who participated in the decision making process. ¹ (Acuna v. The Regents of the University of California, et al., Super. Ct. Alameda County, No. 706072-2.) The complaint alleged violations of the Fair Employment and Housing Act (FEHA) based on race, ethnicity, and age (Gov.Code, § 12900 et seq.), employment discrimination based on appellant's political views and speech (Cal. Const., art. I, § 2), and a violation of the federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. § 623(a)(1)).

The action was removed to the United States District Court for the Northern District of California. (Code Civ. Proc., § 397.) Respondents brought a motion to dismiss the state causes of action on the ground that they were barred by the 11th Amendment. Appellant filed a cross-motion to remand the FEHA causes of action back to state court. The federal court remanded the state causes of action back to the Alameda County Superior Court and retained jurisdiction over the federal ADEA claim. As a result of the partial remand, the action was split into two actions.

In March 1993, the federal action was transferred to the United States District Court for the Central District of California. (Acuna v. The Regents of the University of California, et al., U.S. Dist. Court, No. CV 93-1548 HLH) On March 19, 1993, the Alameda County Superior Court transferred the state court action from Oakland to Santa Barbara County. (Acuna v. The Regents of the University of California, et al., Super Ct. Santa Barbara County, No. SB196297.)

The Federal Action

Appellant amended the complaint in the federal action to allege causes of action for race and ethnic discrimination under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and age discrimination under the ADEA (29 U.S.C. § 623(a)(1)). On March 10, 1995, the federal court granted summary judgment for respondents on the title VII causes of action.

Appellant proceeded to trial on the ADEA cause of action and was awarded substantial damages and attorney's fees against the Regents. The ADEA claim, however, did not permit general or punitive damages. The federal court entered judgment for the individual respondents (the university employees) because they had no personal liability under the ADEA. (Miller v. Maxwell's Intern., Inc. (9th Cir.1993) 991 F.2d 583, 587.)

The State Court Action

On September 22, 1994, respondents moved for summary adjudication on the second amended complaint, third cause of action for speech discrimination. (Cal. Const., art. I, § 2.) The trial court granted the motion, ruling that the cause of action was barred by the one-year state of limitations. (Code Civ. Proc., § 340, sub. 3.)

Appellant filed a third amended complaint alleging causes of action for race, ethnic, and age discrimination in violation of the FEHA. The discrimination claims were identical to the federal title VII claims but sought damages under the FEHA.

Respondents moved for summary adjudication on the ground that the FEHA causes of action for race and ethnic discrimination were barred by the federal summary judgment. Granting the motion, the trial court ruled: "[T]he same primary right is involved in both causes of action in the parallel state and federal proceedings. Plaintiff has a primary right to be free of invidious discrimination in selection for employment based on race, and a similar primary right in regard to discrimination based on national origin. [Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441, 447, 164 Cal.Rptr. 913.] Plaintiff is entitled to one full and fair opportunity to litigate his claims under each of those causes of action, in a court of competent jurisdiction. [p] California state law precludes a plaintiff from relitigating the same cause of action against the same defendants in state court, after a final federal judgment adverse to the plaintiff on the same cause of action. [Citations.]"

The trial court stayed the action on the age discrimination claim until the federal ADEA action was tried. On January 5, 1996, respondents moved for summary judgment on the ground that that the FEHA age discrimination claim was barred by the federal judgment against the Regents. The trial court granted the motion ruling that the federal judgment was a res judicata bar. This appeal followed.

Speech Discrimination/Statute of Limitations

Appellant contends that the trial court erred in finding that the cause of action for speech discrimination was barred by the one-year statute of limitations. (Code Civ. Proc., § 340, subd. 3.) The second amended complaint alleged: "Defendants improperly considered plaintiff's political views, speech and other activities in refusing to hire plaintiff, thereby infringing on his exercise of his free speech rights ... in violation of California Constitution, art. I, § 2." ²

Here the cause of action for speech discrimination is analogous to federal statutes prohibiting discrimination based on an employee's exercise of his or her First Amendment rights. (Wilson v. Garcia (1985) 471 U.S. 261, 278-280, 105 S.Ct. 1938, 1948-1949, 85 L.Ed.2d 254, 268-269 [42 U.S.C. § 1983 action governed by state statute of limitations for personal injury actions]; Harrison v. County of Alameda (N.D.Cal.1989) 720 F.Supp. 783, 788 [title VII action for employment discrimination subject to Code Civ. Proc., § 340, subd. 3]; Reed v. United Transport. Union (1989) 488 U.S. 319, 326, 109 S.Ct. 621, 626-627, 102 L.Ed.2d 665, 675-676 [violation of the Labor Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 411(a)(2)) concerning right to free speech and assembly governed by statute of limitations for personal injury claims]; Taylor v. Regents of Univ. of Cal. (9th Cir.1993) 993 F.2d 710, 712 [civil rights action against University subject to one-year statute of limitations].)

We hold that the claim for violation of appellant's speech rights is subject to the one-year statute of limitations. (Code Civ. Proc., § 340(3).) "The one-year limitation period specified in section 340, subdivision 3, embraces not only bodily injuries but all infringements of personal rights as opposed to property rights. [Citations.]" (Edwards v. Fresno Community Hosp. (1974) 38 Cal.App.3d 702, 705, 113 Cal.Rptr. 579.) Assuming that the university wrongfully fired a tenured professor because it disapproved of his or her political views, an action for wrongful termination would be subject to a one-year statute of limitations. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1209, 51 Cal.Rptr.2d 328; Funk v. Sperry Corp. (9th Cir.1988) 842 F.2d 1129, 1133.) The same statute of limitations should apply to job applicants who allege wrongful denial of public employment because of their political views.

Appellant contends that the two-year statute of limitations applies because the faculty position is a property right. (Code Civ. Proc., § 339, subd. 1.) In determining the applicable statute of limitations, a court must focus on the nature of the right sued upon, not the form of action or relief demanded. (Edwards v. Fresno Community Hosp., supra, 38 Cal.App.3d 702, 704, 113 Cal.Rptr. 579; Augusta v. United Service Automobile Assn. (1993) 13 Cal.App.4th 4, 8, 16 Cal.Rptr.2d 400.) "Courts have frequently been asked to chose between the one-year period of section 340, subdivision 3, and the two-year period of section 339, subdivision 1. The principle of selection which has emerged is that the one-year period applies to all alleged infringements of personal rights, whereas the two-year period applies only to alleged infringements of property rights. [Citations.]" (Richardson v. Allstate Ins. Co. (1981) 117 Cal.App.3d 8, 12, 172 Cal.Rptr. 423.)

We reject the argument that the two-year statute of limitations applies. Appellant had no property right to a tenured teaching position. (E.g., Scharf v. Regents of the University of California (1991) 234 Cal.App.3d 1393, 1407-1408, 286 Cal.Rptr. 227; King v. Regents of the University of California (1982) 138 Cal.App.3d 812, 815, 189 Cal.Rptr. 189.) The cause of action for violation of appellant's state constitutional rights...