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Pollock v. University of Southern California10/30/2003
CERTIFIED FOR PUBLICATION
INTRODUCTION
This is the second lawsuit filed by plaintiff Vicki E. Pollock, Ph.D. against her former employer, the University of Southern California. The earlier lawsuit (Pollock I) was filed during the termination process. The instant lawsuit (Pollock II) was filed after Pollock was finally discharged from employment, but while her appeal in Pollock I was pending before this Court. In both actions Pollock challenged the method by which she was terminated from her tenured position. In Pollock I, we held all of Pollock's contentions were without merit and her sole remedy for alleged defects in the process by which the University revokes her tenure and discharges her for service is by administrative mandamus.
In this appeal, we review the judgment entered after the trial court sustained the demurrer filed by the University and defendant William G. Tierney, Ph.D. (together, defendants are referred to as the University) and denied Pollock leave to amend. The contentions raised in Pollock II are nearly identical to those raised in Pollock I and again we conclude they are meritless. Moreover, as the same issues were decided in Pollock I, much of Pollock's complaint here is barred by the doctrine of res judicata. Accordingly, we affirm the judgment.
We issued an order to show cause why we should not impose sanctions for a frivolous appeal. (Cal. Rules of Court, rule 27(e)(3).) Concluding Pollock's appeal is meritless, we hold her appeal is frivolous (In re Marriage of Flaherty (1982) 31 Cal.3d 637) and impose sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
1. Predicate facts.
For review purposes, we assume the truth of the allegations in Pollock's complaint. (Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 429.) Since 1992, Pollock was a tenured member of the University's Department of Psychiatry and Behavioral Sciences faculty. In 1998, Pollock was assigned to a full-time clinical position as a psychologist with the Department of Psychiatry's Ingleside Hospital. The University also required her to obtain funding to conduct research independently through outside grants. Pollock protested her assignment by agreeing to teach only on Tuesdays and Thursdays. After two years during which Pollock reported to Ingleside Hospital only two out of the five assigned days per week, the University charged her with serious neglect of duty.
The University commenced dismissal proceedings. Pollock unsuccessfully attempted to enjoin the proceedings and then sued the University. The gravamen of the complaint in Pollock I was that the University secretly modified the faculty handbook by changing the bases and procedures for dismissal in an effort to facilitate dismissal of tenured faculty, and created a "dismissal machinery" with which it could remove tenured faculty "virtually at will." (Pollock v. University of Southern California (November 29, 2001, B145203) [nonpub. opn.].) Pollock further alleged in that action that the University falsified charges against her and forced her out of her research position into clinical work. In our earlier opinion, we affirmed the sustaining of the demurrer to Pollock's complaint on the ground, because the dismissal process had not been completed and no decision about Pollock's continued employment had been made, no cognizable adverse employment action had yet been taken against Pollock. (Pollock I, supra, B145203.)
More relevant to this appeal, we held in Pollock I that Pollock's challenges to the procedure by which the University revoked her tenure and discharged her from employment (as distinguished from her claims for retaliation and discrimination
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