(2004) 122 Cal. App. 4th 97
Court of Appeal, Second District, Division 3, California.
Amitis MOTEVALLI, Plaintiff and Appellant,
LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Appellant.
Sept. 9, 2004.
Law Offices of Hadsell & Stormer, Dan Stormer, Anne Richardson, Pasadena,
and Cornelia Dai, for Plaintiff and Appellant.
Law Office of Lawrence B. Trygstad, Richard J. Schwab; Trygstad, Schwab
& Trygstad, Richard J. Schwab, Los Angeles, and Angelo L. Rosa for
United Teachers Los Angeles as Amicus Curiae on behalf of Plaintiff and
Strumwasser & Woocher, Michael J. Strumwasser, Fredric D. Woocher,
Santa Monica, Johanna R. Shargel, Lamar W. Baker and Becky L. Monroe for
Defendant and Appellant.
Plaintiff and appellant Amitis Motevalli (Motevalli) appeals a judgment
in favor of defendant and respondent Los Angeles Unified School District
(the District) entered following a grant of judgment notwithstanding the
The District has filed a protective cross-appeal from the original judgment.
The issues presented are whether the trial court properly granted summary
adjudication in favor of the District on Motevalli's Tameny claim,
[FN1] and whether it properly granted JNOV in favor of the District on
Motevalli's cause of action for damages for violation of her free
speech rights under the California Constitution.
FN1. Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 164 Cal.Rptr.
839, 610 P.2d 1330.
Motevalli was an emergency-credentialed teacher who was hired by the District
for a specific period of time. The District elected not to renew Motevalli's
contract. The nonrenewal is not actionable under Tameny because no cause
of action exists for tortious nonrenewal of an employment contract in
violation of public policy. (Daly v. Exxon Corp. (1997) 55 Cal.App.4th
39, 45-46, 63 Cal.Rptr.2d 727.) Further, Motevalli cannot maintain an
action for damages for deprivation of the right to free speech under article
I, section 2, subdivision (a), of the California Constitution (hereafter,
article I, section 2(a)). (Degrassi v. Cook (2002) 29 Cal.4th 333, 335,
127 Cal.Rptr.2d 508, 58 P.3d 360.) Therefore, the judgment in favor of
the District is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. The District hires Motevalli to teach under an emergency credential.
Motevalli obtained a bachelor's degree in 1995 and a master's degree
in fine art in 1998. In May 1999, the District hired Motevalli for a position
teaching art and art history at Locke High School (Locke) for the 1999-2000
school year. She completed a three-day new teacher training academy and
began work on September 6, 1999 under an "emergency credential."
The employment relationship between Motevalli and the District was formalized
in a one-page agreement captioned "Offer of Contract Employment as
a Provisional or University Intern Teacher," signed by the parties.
The agreement stated Motevalli's contract status was "provisional"
and that the term of service was to commence "on or before 10-18-99
and ending 06-30-00." The agreement stated it was "subject to
provisions of the District and United Teachers-Los Angeles Collective
Bargaining Agreement, all rules and regulations of the Board of Education,
and all provisions of laws and regulations of the State of California."
(Italics added.) Thus, the contract was expressly subject to the Education Code.
Paragraph 5 provided: "I understand that if this offer is for a provisional
contract, service under an emergency permit does not count toward permanent
status (tenure) with the District; I also understand that this contract
can be cancelled at anytime without cause at the discretion of the District."
For the subsequent school year, 2000-2001, Motevalli was offered and accepted
a successive contract with the same terms and conditions, except that
under the second contract, the term of service was to commence "on
or before 11-13-00 and ending 06-30-01."
2. Events during the 2000-2001 school year leading up to the District's
decision not to renew Motevalli's contract.
Since 1993, the District has required its secondary schools to conduct
regular random weapons searches. The random weapons search policy is intended
to deter the bringing of weapons onto school grounds and thereby to reduce
the potential for violent incidents.
Pursuant to the weapons search policy, on December 13, 2000, school officials
selected Motevalli's classroom for a weapons search. Motevalli refused
to allow the scan team to conduct a search, stated she believed the search
was illegal under the Fourth Amendment, and asked the scan team to come
back another time.
The next day, Annie L. Webb (Webb), the principal at Locke, sent Motevalli
a memorandum admonishing her that her refusal to cooperate with the scan
team was contrary to District policy and could lead to disciplinary action
in the form of a Notice of Unsatisfactory Act (Unsat) with a possible
recommendation for suspension without pay. Under District practice, a
provisional teacher who receives an Unsat notice is not offered a contract
for the next academic year.
On January 23, 2001, Motevalli's classroom was selected for another
random weapons search. Motevalli again told the scan team "[her]
class was busy and that in [her] view the [F]ourth [A]mendment would be
violated." Webb arrived and summoned Motevalli to her office. Before
leaving the classroom, Motevalli told her students "You know what
to do." Motevalli previously had instructed her students that in
the event of a weapons search, unless they were on probation they were
entitled to refuse to cooperate. Most of the students then left the room
and the search did not proceed.
Immediately after this incident, Webb held a conference with Motevalli,
at which Webb emphasized that "safety comes first" and that
as an employee of the District, Motevalli was required to enforce District
policy, regardless of her personal beliefs. Webb then issued a conference
summary memorandum to Motevalli which concluded: "I will continue
to investigate the matter and this may result in disciplinary action in
the form of an Unsatisfactory Act and a suspension without pay."
On April 2, 2001, Webb held a conference with Motevalli, at which time
Motevalli was issued an Unsat notice. The notice charged that on January
23, 2001, Motevalli "failed to follow an administrative directive
when she failed to allow the school's weapon scanning team to enter
her room to scan her students" and that she "used poor judgment
and demonstrated little or no regard for the safety of students by: Yelling,
'You know what to do!' [w]hen the scanning team entered the classroom.
Previously instructing her students to begin shouting and walking out
of the classroom if the scanning team came in. Allowing the students to
leave the classroom without taking any action and failing to provide any
supervision. Failing to follow school and administrative policy regarding
the random scanning of students for weapons."
The Unsat notice, which was signed by Webb, recommended Motevalli be dismissed
from the District. However, Motevalli was not dismissed and she was permitted
to serve out the full term of her contract. Contemporaneous with the Unsat
notice, Motevalli also was given notice of a five-day suspension, based
on the same charges as the Unsat. Motevalli appealed the suspension notice,
the appeal was not resolved before the contract expired, and the suspension
was not served.
Motevalli worked at Locke through June 22, 2001. Her contract was not renewed
for the 2001-2002 school year.
On July 12, 2001, three weeks after Motevalli's last day at Locke,
she commenced this action against the District in the superior court,
bringing claims for (1) violation of 42 United States Code section 1983
(§ 1983); (2) wrongful termination in violation of public policy
(Tameny ); (3) violation of free speech under the California Constitution;
(4) taxpayer claim (Code Civ. Proc., § 526a); (5) negligent supervision
and (6) intentional infliction of emotional distress.
The District had the case removed to federal court, which dismissed the
section 1983 claim against the District on the ground of sovereign immunity
under the Eleventh Amendment, and remanded the state claims to state court.
On remand, the trial court granted judgment on the pleadings in favor
of the District on the last three causes of action. At that juncture,
the only remaining causes of action were the second and third causes of
action, namely, the Tameny claim and the free speech claim under the California
In this regard, Motevalli pled the District enforces a "custom and
policy of conducting suspicionless pat-downs of students while they are
in class," that the policy was "disruptive and takes valuable
time away from learning" and "violate[s] the students' rights
to privacy." Further, "Locke officials arbitrarily select students
for bag inspections without any reasonable suspicion of weapons possession."
Motevalli alleged she "spoke up when she believed that students were
being treated unfairly by the police," and that she was also "very
vocal about Locke's need for more teachers."
These factual allegations were the basis for Motevalli's cause of action
for tortious discharge in violation of public policy, wherein she pled
she was terminated for engaging in speech protected by the First Amendment.
These allegations also served as the basis for the state constitutional
claim, wherein Motevalli sought damages for violation of her right to
free speech under the California Constitution.
b. The Tameny claim is eliminated on summary adjudication.
On August 9, 2002, the District moved for summary judgment. The District
contended there was no admissible evidence to support Motevalli's
claim the decision not to renew her contract was retaliatory in any way;
the evidence showed Motevalli's contract was not renewed because she
was insubordinate and interfered with the District's longstanding
safety program; Motevalli, as an untenured, emergency-credentialed teacher,
had no property right in continued employment with the District; the unlawful
search claim was meritless; Motevalli had no standing to raise her students'
privacy rights; and to the extent Motevalli claimed she was harassed for
criticizing Locke's policies and practices, such speech falls outside
the protection of the California Constitution.
The District did not, in the alternative, move for summary adjudication.
However, the trial court granted summary adjudication as to the Tameny
claim, ruling: "[Motevalli] can not make a Tameny claim for wrongful
termination in violation of public policy because she was not terminated.
Defendant had a right not to renew her contract, which is what it did.
Since plaintiff was not fired, discharged, or terminated, she can not
claim wrongful termination in violation of public policy. Daly v. Exxon
Corp.[, supra,] 55 Cal.App.4th [at p.] 45 [63 Cal.Rptr.2d 727]. Additionally,
there is no cause of action for 'tortious nonrenewal of an employment
contract in violation of public policy. Id. at 45-46 [63 Cal.Rptr.2d 727].'
FN2. Although the trial court resolved the Tameny claim on the ground there
was no wrongful termination in that the District merely elected not to
renew Motevalli's contract, the record reflects said ground was not
raised in the District's moving or reply papers below. This procedural
issue is addressed in section 2b. of the Discussion, infra.
The trial court denied summary adjudication on the state constitutional
claim on the ground that Laguna Publishing Co. v. Golden Rain Foundation
(1982) 131 Cal.App.3d 816, 182 Cal.Rptr. 813 (Laguna ) allows a tort action
for damages for violation of the free expression clause of article I,
section 2, of the California Constitution, and although the evidence strongly
suggested Motevalli's insubordination, not her exercise of free speech,
was the principal motive in her nonrenewal, the court could not decide
this issue as a matter of law and the issue was one for the jury.
c. Trial on the state constitutional claim; jury returns a verdict for
On October 1, 2002, the matter went to trial on Motevalli's claim under
article I, section 2 of the California Constitution. The jury returned
a special verdict for Motevalli. It found, inter alia, she was engaged
in legally protected activity, she was subjected to an adverse employment
action, the protected activity was a substantial or motivating factor
in the District's adverse employment action and the District would
not have reached the same decision to take adverse employment action against
Motevalli had she not engaged in protected activity. The jury awarded
Motevalli $425,000, consisting of $137,500 in economic damages and $287,500
in noneconomic damages. Judgment on the verdict was entered on November 19, 2002.
d. Post-trial proceedings.
On December 4, 2002, the District filed motions for JNOV and for new trial.
The District raised two issues on its motion for JNOV. First, on November
27, 2002, the California Supreme Court issued its decision in Degrassi
v. Cook, supra, 29 Cal.4th 333, 127 Cal.Rptr.2d 508, 58 P.3d 360, which
disallowed a claim for damages for an alleged violation of the free speech
clause of article I, section 2 of the California Constitution. In addition,
Motevalli failed to present substantial evidence the nonrenewal of her
contract was impermissibly motivated, and to the contrary, the unrefuted
evidence established the District would have reached the same decision
regardless of Motevalli's engaging in constitutionally-protected activity.
In its concurrent motion for new trial, the District raised the grounds
of instructional error, evidentiary error, excessiveness of damages and
insufficiency of the evidence to justify the verdict.
The motions were heard and taken under submission. On January 21, 2003,
the trial court granted the District's JNOV motion. It found substantial
evidence to support the jury's determination the District would not
have reached the same decision not to renew Motevalli's contract had
Motevalli not engaged in protected activity. Nonetheless, Degrassi was
controlling, Degrassi applied retroactively to this case, and under Degrassi,
Motevalli had no claim for damages for violation of the right to free
speech under the California Constitution.
The trial court denied the District's motion for new trial.
On February 4, 2003, after vacating the judgment on special verdict, the
trial court entered a new judgment in favor of the District.
Motevalli filed a timely notice of appeal from the February 4, 2003 judgment.
The District cross-appealed from the November 19, 2002 judgment.
Motevalli contends the trial court erred in granting summary adjudication
on her Tameny claim and in granting JNOV in favor of the District pursuant
to Degrassi on her claim for damages under the California Constitution.
The District contends that if this court reverses the JNOV, it should also
reverse the order denying the District's motion for new trial because
the verdict was the product of prejudicial evidentiary and instructional error.
1. As a preliminary matter, Motevalli was a probationary teacher with
no entitlement to a renewal of her contract.
Although Motevalli's Tameny claim and her cause of action for damages
for violation of her right to free speech are nonstatutory claims, those
issues cannot be resolved in a vacuum. Further, the employment relationship
between Motevalli and the District cannot be determined solely by reference
to the written contract because contract terms cannot supercede statutory
requirements. (Zalac v. Governing Bd. of Ferndale Unified School Dist.
(2002) 98 Cal.App.4th 838, 849, 120 Cal.Rptr.2d 615; Fine v. Los Angeles
Unified School Dist. (2004) 116 Cal.App.4th 1070, 1077, fn. 7, 10 Cal.Rptr.3d
876.) "Certificated employees [teachers] must be classified in accordance
with the provisions of the Education Code." (Zalac, supra, at p.
849, 120 Cal.Rptr.2d 615; accord Fine, supra, at p. 1077, fn. 7, 10 Cal.Rptr.3d
876.) [FN3] The classification is pivotal because a teacher's classification
"governs the level of statutory job protection the teacher enjoys
and controls the level of procedural protections that apply if he or she
is not reelected." (Kavanaugh v. West Sonoma County Union High School
Dist. (2003) 29 Cal.4th 911, 917, 129 Cal.Rptr.2d 811, 62 P.3d 54.)
FN3. "The term 'certificated person' refers to a person who
holds one or more documents such as a certificate, a credential, or a
life diploma, which singly or in combination license the holder to engage
in the school service designated in the document or documents." (Ed.Code,
All further statutory references are to the Education Code, unless otherwise
Therefore, before discussing the specifics of the contentions raised by
Motevalli relating to her causes of action, it is necessary as a preliminary
matter to determine Motevalli's classification under the Education
Code and the nature of the employment relationship.
b. General principles: the four possible classifications.
As the Supreme Court explained in Kavanaugh v. West Sonoma County Union
High School Dist., supra, 29 Cal.4th at pages 916-917, 129 Cal.Rptr.2d
811, 62 P.3d 54, " 'The Education Code establishes four possible
classifications for certificated employees: permanent, probationary, substitute
and temporary.' [Citation.] The code authorizes the governing boards
of school districts to hire, classify, promote and dismiss certificated
employees (i.e., teachers) (see § 44831), but establishes a complex
and somewhat rigid scheme to govern a board's exercise of its decisionmaking
power." (See also Cal.Code Regs., tit. 5, § 5501, subd. (c),
setting forth the four classifications.)
c. Motevalli's status as "provisional" denotes her licensure
status, not her employment status; her status was not "temporary."
The written contract indicated Motevalli's contract status was "provisional."
However, as noted in Fine v. Los Angeles Unified School Dist., supra,
116 Cal.App.4th 1070, 10 Cal.Rptr.3d 876, the Education Code does not
classify teachers as " 'provisional.' " (Id., at p.
1077, fn. 6, 10 Cal.Rptr.3d 876.) The Education Code "refers only
to service by a person 'under a provisional credential.' (§
44911.)" (Fine, supra, at p. 1077. fn. 6, 10 Cal.Rptr.3d 876.) Therefore,
the contract's characterization of Motevalli as provisional denoted
her licensure status, not her employment classification.
Thus, although the word "provisional" means "provided for
a temporary need" (Webster's Third New Internat. Dictionary (1986)
p. 1827, col. 3), Motevalli's classification under the Education Code
was not that of a temporary teacher. (See § § 44919, 44920,
44921, relating to temporary status.) The parties agree Motevalli was
not a temporary teacher.
d. Motevalli's employment classification was probationary by operation of law.
As noted in California Teachers Assn. v. Governing Bd. of Golden Valley
Unified School Dist. (2002) 98 Cal.App.4th 369, 377, 119 Cal.Rptr.2d 642
(Golden Valley ), "no statutory provision explicitly delineates how
teachers with emergency permits should be classified." [FN4] Therefore,
we resort to section 44915, which provides: "Governing boards of
school districts shall classify as probationary employees, those persons
employed in positions requiring certification qualifications for the school
year, who have not been classified as permanent employees or as substitute
employees." [FN5] By statute, "probationary" is the default
category for those persons not classified as permanent or substitute teachers.
FN4. In Golden Valley, the teacher, who held an emergency permit, was expressly
classified under the written contract as a probationary employee. (California
Teachers Assn., supra, 98 Cal.App.4th at pp. 372- 373, 119 Cal.Rptr.2d
642.) The trial court ruled a teacher with only an emergency permit may
not be classified as a probationary employee. (Id., at p. 372, 119 Cal.Rptr.2d
642.) The reviewing court reversed, holding the classification was proper. (Ibid.)
FN5. As noted in Fine v. Los Angeles Unified School Dist., supra, 116 Cal.App.4th
at page 1077, footnote 6, 10 Cal.Rptr.3d 876, the classification of temporary
employees is addressed in other Code sections.
In Fine, the plaintiff worked as an elementary teacher under an emergency
permit. (Fine, supra, 116 Cal.App.4th at p. 1073, 10 Cal.Rptr.3d 876.)
The reviewing court found that pursuant to section 44915, "while
[the plaintiff] served under her emergency permit, she was apparently
entitled to classification as a probationary employee, for purposes other
than attaining tenure." (Fine, supra, at p. 1077, fn. 6, 10 Cal.Rptr.3d
876, italics added.) [FN6]
FN6. This limitation is based on section 44911, which states in pertinent
part: "Service by a person under a provisional credential shall not
be included in computing the service required as a prerequisite to attainment
of, or eligibility to, classification as a permanent employee of a school
Here, while Motevalli was serving under her emergency permit, because she
was not classified as a temporary, permanent or substitute teacher, we
conclude her classification was probationary by operation of law. (§ 44915.)
e. Irrespective of Motevalli's status as a probationary teacher, her
term of service was set by the contract and expired June 30, 2001; although
not one of Motevalli's contentions, she was not deemed automatically
reelected in the absence of a March 15 notice because section 44929.21(b)
is inapplicable to a teacher employed under an emergency permit; her employment
was not terminated--it simply was not renewed.
Given Motevalli's status as a probationary employee, the question arises
as to whether that status gave her certain statutory rights with respect
to an automatic renewal of her contract. This issue relates to Motevalli's
Tameny claim, because, as explained in section 2 of the Discussion, for
purposes of stating a Tameny claim a distinction exists between a termination
of employment and a nonrenewal of an expired employment contract. (Daly
v. Exxon Corp., supra, 55 Cal.App.4th at p. 45, 63 Cal.Rptr.2d 727.)
Under section 44929.21, subdivision (b), unless a probationary teacher
is notified of nonreelection by March 15 of his or her second consecutive
school year, that teacher is automatically deemed reelected and is entitled
to classification as a permanent employee at the commencement of the succeeding
school year. [FN7]
FN7. Section 44929.21 provides in relevant part at subdivision (b): "Every
employee of a school district ... who, after having been employed by the
district for two complete consecutive school years in a position or positions
requiring certification qualifications, is reelected for the next succeeding
school year to a position requiring certification qualifications shall,
at the commencement of the succeeding school year be classified as and
become a permanent employee of the district. The governing board shall
notify the employee, on or before March 15 of the employees second complete
consecutive school year of employment by the district in a position or
positions requiring certification qualifications, of the decision to reelect
or not reelect the employee for the next succeeding school year to the
position. In the event that the governing board does not give notice pursuant
to this section on or before March 15, the employee shall be deemed reelected
for the next succeeding school year." (Italics added.)
Section 44929.21, subdivision (b) clearly is inapplicable to a probationary
teacher employed under an emergency credential. Notwithstanding any other
rights a teacher with a provisional credential may have, under the statutory
scheme, "[s]ervice by a person under a provisional credential shall
not be included in computing the service required as a prerequisite to
attainment of, or eligibility to, classification as a permanent employee
of a school district." (§ 44911.) Emergency teaching credentials,
such as the emergency permit issued to Motevalli, are "provisional
credentials" within the meaning of section 44911. (Summerfield v.
Windsor Unified School Dist. (2002) 95 Cal.App.4th 1026, 1032, 116 Cal.Rptr.2d
233.) A probationary teacher employed under an emergency credential cannot
ascend to permanent status merely through the passage of time. (§ 44911.)
Therefore, irrespective of Motevalli's status as a probationary employee,
because she was employed under an emergency credential, the District was
not required to notify her by March 15 of her second year of employment
of her nonrenewal for the ensuing school year (§ 44929.21, subd.
(b)) for her employment to terminate.
f. Preliminary conclusion.
Having considered the operative employment contract in light of the Education
Code to determine Motevalli's appropriate classification, we conclude
she was a probationary teacher, albeit working under an emergency credential.
Given that status, the District properly notified Motevalli at the end
of the 2000-2001 school year that her contract, with an expiration date
of June 30, 2001, would not be renewed.
Pursuant to the statutory scheme, as well as the language of the employment
contract, the District had the right not to renew Motevalli's contract
for the succeeding school year. The District exercised that right. Against
this backdrop, we now turn to the issues presented by Motevalli's
Tameny and free speech claims.
2. An alleged wrongful nonrenewal of an employment contract does not give
rise to a claim of tortious nonrenewal in violation of public policy;
such a cause of action is not recognized.
a. Mere nonrenewal of Motevalli's contract did not constitute an adverse
employment action for purposes of stating a Tameny claim.
The seminal case of Tameny v. Atlantic Richfield Co., supra, 27 Cal.3d
167, 164 Cal.Rptr. 839, 610 P.2d 1330, recognized a cause of action in
tort where an employee is wrongfully discharged in contravention of fundamental
Subsequent case law had held adverse employment action short of a termination
may give rise to a Tameny claim. In Garcia v. Rockwell Internat. Corp.
(1986) 187 Cal.App.3d 1556, 232 Cal.Rptr. 490, the employee brought a
Tameny claim, alleging he was wrongfully suspended without pay and demoted
in retaliation for revealing his employer's misconduct to NASA's
inspector general. (Id., at pp. 1558, 1560, 232 Cal.Rptr. 490.) The employer
moved for summary judgment, contending a tort claim did not lie because
a Tameny cause of action arises only after a retaliatory firing or termination
of employment. (Id., at p. 1560, 232 Cal.Rptr. 490.) The trial court granted
the employer's motion. (Id., at p. 1558, 232 Cal.Rptr. 490.)
The reviewing court reversed. It observed: "[The employer] claims
application of the Tameny rationale to a claim of retaliatory disciplinary
action, falling short of an actual discharge, presents a case of first
impression in California, and that appears to be correct. Neither counsel's
nor our independent research has revealed a case involving a suspension
without pay or other disciplinary action, other than discharge. However,
we see no reason why the rationale of Tameny should not be applicable
in a case where an employee is wrongfully (tortiously) disciplined and
suffers damage as a result" (Garcia, supra, 187 Cal.App.3d at p.
1561, 232 Cal.Rptr. 490), even though "the ultimate sanction of discharge
has not been imposed." (Id., at p. 1562, 232 Cal.Rptr. 490.)
In the instant case, the issue presented is whether the District's
nonrenewal of Motevalli's employment contract constituted a sufficient
adverse employment action for purposes of maintaining a Tameny claim.
We agree with the trial court that Daly v. Exxon Corp., supra, 55 Cal.App.
4th 39, 63 Cal.Rptr.2d 727, is dispositive.
In Daly, the plaintiff contended she had pled a Tameny claim for wrongful
termination in violation of public policy. The reviewing court rejected
the argument on the ground the plaintiff was not fired, discharged, or
terminated. (Daly, supra, 55 Cal.App.4th at p. 45, 63 Cal.Rptr.2d 727.)
"The contract was for a one-year term; it stated: 'Exxon shall
have the option in its sole discretion of terminating this AGREEMENT without
cause at any time by giving ten (10) days prior written notice thereof.'...
The employment contract was for a fixed term and expired May 1, 1992.
Under a fixed-term contract, the 'employment is terminated by ...
... [e]xpiration of its appointed term.' ( [Lab.Code] § 2920,
subd. (a).) Had Exxon fired, discharged, or terminated Daly before the
contract expired because she complained about unsafe working conditions,
she could have sued for wrongful discharge in addition to statutory damages.
[Citation.]" (Daly, supra, 55 Cal.App.4th at p. 45, 63 Cal.Rptr.2d
727.) However, the plaintiff could not sue for tort damages where the
employment contract was for a fixed term and expired. (Ibid.)
Daly also noted the plaintiff's use of the term "wrongful termination"
was a misnomer in that there was no termination, only a nonrenewal of
the employment contract. (Daly, supra, 55 Cal.App.4th at p. 45, 63 Cal.Rptr.2d
727.) Daly further held the plaintiff was not entitled to leave to amend
"to allege a new cause of action for what she labels 'tortious
nonrenewal of an employment contract in violation of public policy.'
'We are unaware of any case, and [plaintiff] presents none, in which
an employer was held liable in tort for refusing to renew an employment
contract that had expired by its own terms.' [Citation.]" (Id.,
at pp. 45-46, 63 Cal.Rptr.2d 727.)
Daly is directly on point. The District did not terminate Motevalli--she
was a probationary teacher, working under an emergency credential, whose
contract was not renewed. Absent a termination, there is no cause of action
for wrongful termination in violation of public policy. Further, Motevalli
was incapable of amending her complaint to allege a new cause of action
for tortious nonrenewal of her employment contract in violation of public
policy because no such cause of action is recognized. (Daly, supra, 55
Cal.App.4th at pp. 45-46, 63 Cal.Rptr.2d 727.)
Accordingly, we uphold the trial court's grant of summary adjudication
on Motevalli's Tameny claim. [FN8]
FN8. Because Motevalli cannot state a cause of action against the District
for wrongful nonrenewal of the employment contract in violation of public
policy, it is unnecessary to address whether such a claim is barred by
b. Trial court's procedural error in granting summary adjudication
on the Tameny claim was harmless.
With respect to the Tameny claim, Motevalli also contends the trial court
committed procedural error (1) in granting summary adjudication on that
claim even though the District moved solely for summary judgment and did
not seek, in the alternative, summary adjudication of issues; and (2)
in granting summary adjudication pursuant to Daly, on the ground there
was a nonrenewal of the contract, rather than a termination, which ground
was not briefed or addressed by the parties. Under the circumstances of
this case, both these procedural flaws are harmless.
We are mindful that a motion for summary adjudication cannot be considered
by the court unless the party bringing the motion for summary judgment
duly gives notice that summary adjudication is being sought as an alternative
to summary judgment, in the event summary judgment is denied. (Gonzales
v. Superior Court (1987) 189 Cal.App.3d 1542, 1545-1546, 235 Cal.Rptr.
106.) Here, the District solely moved for summary judgment. The trial
court denied summary judgment but granted summary adjudication on the
Tameny claim. Given the procedural posture of the matter, the partial
grant of summary adjudication was improper.
Nonetheless, the error was harmless because the trial court's decision,
which disposed of Motevalli's Tameny claim, was correct in result.
(D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112
Cal.Rptr. 786, 520 P.2d 10.) Motevalli pled in her complaint that on June
8, 2001, she was notified "her contract would not be renewed."
As the parties acknowledge in their appellate briefs, the grant of summary
adjudication on the Tameny claim was in effect a grant of a motion for
judgment on the pleadings on that cause of action--the trial court ruled
that pursuant to Daly, no cause of action exists for tortious nonrenewal
of an employment contract in violation of public policy.
The sufficiency of the pleadings is a question of law (Buford v. State
of California (1980) 104 Cal.App.3d 811, 818, 164 Cal.Rptr. 264) and on
such questions, we are required to make an independent determination.
(Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 529,
260 Cal.Rptr. 713.) We have made our own determination herein. As explained
in the preceding section, absent a termination, there is no cause of action
for wrongful termination in violation of public policy. Further, Motevalli
cannot amend her complaint to allege a cause of action for tortious nonrenewal
of her employment contract in violation of public policy because no such
cause of action is recognized. (Daly, supra, 55 Cal.App.4th at pp. 45-46,
63 Cal.Rptr.2d 727.) Therefore, the trial court's dismissal of Motevalli's
Tameny claim was correct in result and must be upheld.
Finally, leaving aside whether Motevalli had sufficient opportunity below
to address the impact of Daly on the viability of her Tameny claim, that
legal issue has been exhaustively briefed at the appellate level. Therefore,
Motevalli has no cause to complain that the applicability of Daly was
not addressed or briefed by the parties at the lower court level.
For these reasons, there was no prejudicial procedural error in the grant
of summary adjudication on the Tameny claim.
3. Pursuant to Degrassi, the trial court properly granted JNOV on Motevalli's
cause of action for damages for deprivation of her right to free speech
under the California Constitution.
a. The Degrassi decision.
In Degrassi, the Supreme Court considered whether an individual may bring
an action for money damages on the basis of an alleged violation of a
provision of the California Constitution, in the absence of a statutory
provision or an established common law tort authorizing such a damage
remedy for the constitutional violation. (Degrassi, supra, 29 Cal.4th
at p. 335, 127 Cal.Rptr.2d 508, 58 P.3d 360.)
The plaintiff therein was a former city council member who sought damages
to remedy an alleged violation of the free speech clause of the California
Constitution, article I, section 2(a), based upon the conduct of various
city officials and other individuals that assertedly interfered with plaintiffs
performance of her duties. (Degrassi, supra, 29 Cal.4th at p. 335, 127
Cal.Rptr.2d 508, 58 P.3d 360.) [FN9] Degrassi concluded that under the
circumstances presented, an action for damages did not lie. (Id., at pp.
335, 344, 127 Cal.Rptr.2d 508, 58 P.3d 360.) [FN10]
FN9. The free speech clause of article I, section 2(a) states: "Every
person may freely speak, write and publish his or her sentiments on all
subjects, being responsible for the abuse of this right. A law may not
restrain or abridge liberty of speech or press."
FN10. At the time this matter was tried to the jury, Laguna, supra, 131
Cal.App.3d 816, 182 Cal.Rptr. 813, allowed an action for damages to remedy
an asserted free speech and free press rights violation. Degrassi noted
the Laguna court did not consider whether the constitutional provision
was intended to include such a remedy, and instead "appears to have
recognized a constitutional tort action for such damages." (Degrassi,
supra, 29 Cal.4th at p. 341, 127 Cal.Rptr.2d 508, 58 P.3d 360.) The Supreme
Court has disapproved the "methodology" employed by the majority
in Laguna, without expressing any view on the correctness of the result
reached therein. (Degrassi, supra, 29 Cal.4th at p. 342, fn. 7, 127 Cal.Rptr.2d
508, 58 P.3d 360; Katzberg v. Regents of University of California (2002)
29 Cal.4th 300, 328, fn. 30, 127 Cal.Rptr.2d 482, 58 P.3d 339.)
Initially, Degrassi observed there was "no indication in the language
of article I, section 2(a), nor any evidence in the history of that provision,
from which we may find, within that provision, an implied right to seek
damages for a violation of the free speech right set out therein."
(Degrassi, supra, 29 Cal.4th at p. 342, 127 Cal.Rptr.2d 508, 58 P.3d 360.)
However, "the determination that article I, section 2(a), in itself,
does not afford a right to seek damages for a violation of that provision
does not end our inquiry. 'Just as we have not discovered any basis
for concluding that a damages remedy was contemplated or reasonably might
be inferred within [article I, section 2(a) ] for violation of that provision,
we also have not discovered any basis for concluding that a damages remedy
was intended to be foreclosed. In such circumstances, we ... proceed to
consider whether a constitutional tort action for damages to remedy the
asserted constitutional violation should be recognized.' [Citation.]"
(Id., at p. 342, 127 Cal.Rptr.2d 508, 58 P.3d 360.) Degrassi then applied
the factors set forth in Katzberg, supra, 29 Cal.4th at pages 324-329,
127 Cal.Rptr.2d 482, 58 P.3d 339, to "decline to recognize a constitutional
tort action for damages to remedy the asserted violation of article I,
section 2(a), alleged in the case before us." (Degrassi, supra, 29
Cal.4th at p. 342, 127 Cal.Rptr.2d 508, 58 P.3d 360.) [FN11]
FN11. The issue in Katzberg, which was issued on the same day as Degrassi,
was whether a plaintiff may bring an action for money damages based upon
defendant's alleged violation of his due process "liberty interest"
under article I, section 7, subdivision (a), of the California Constitution.
(Katzberg, supra, 29 Cal.4th at p. 303, 127 Cal.Rptr.2d 482, 58 P.3d 339.)
Katzberg concluded an action for damages was not available. (Ibid.)
Degrassi ruled "[t]he first two factors set out in Katzberg militate
against recognition of a constitutional tort action. First, plaintiff
had meaningful alternative remedies. She could have sought mandate or
an injunction against the challenged conduct under either Code of Civil
Procedure section 1085, or under the Ralph M. Brown Act (Brown Act; Gov.Code,
§ 54950 et seq.). [Fn. omitted.] ... Second, contrary to plaintiffs
assertion that a damages action to remedy an asserted violation of her
free speech rights is contemplated by tort law as codified in Civil Code
sections 1708 and 3333, ... as a general matter these provisions do not
support recognition of a constitutional tort action for damages."
(Degrassi, supra, 29 Cal.4th at pp. 342-343, 127 Cal.Rptr.2d 508, 58 P.3d 360.)
Degrassi continued, "[b]ut even if we were, at this point in our analysis,
inclined toward recognizing a constitutional tort action for damages in
the case before us, a final factor would counsel strongly against-- and
on the facts alleged, preclude--recognition of such an action. As observed
in Katzberg, courts have expressed reluctance to create a damages action
when doing so might, among other things, produce adverse policy consequences
or practical problems of proof, or when there is reason to question the
competence of courts to assess particular types of damages. (Katzberg,
supra, 29 Cal.4th at p. 329 [127 Cal.Rptr.2d 482, 58 P.3d 339].)"
(Degrassi, supra, 29 Cal.4th at p. 343, 127 Cal.Rptr.2d 508, 58 P.3d 360.)
Applying this third Katzberg factor, Degrassi explained: "[P]laintiff
bases her free speech claim essentially on allegations that defendants
improperly frustrated her ability to exercise the duties of a local legislator,
because defendants disagreed with her approach and with her views. But
legislators who are placed in such a position may be expected either to
report suspected wrongdoing to prosecuting authorities, or, more commonly,
to employ their political position to publicize the asserted transgressions
of other council members. In circumstances such as these, there is reason
for concern that a damages action might 'impose too heavy, or too
erratic, a penalty' [citation] and that the threat of such damages
improperly might chill the political process. These risks are increased
in the absence of an objectively ascertainable measure of damages, and
this also is so when 'the amount awarded depends upon the measure
of the damage suffered by the particular plaintiff rather than the measure
of fault on the part of the defendant.' [Citation.] (Ibid.) Accordingly,
we are extremely reluctant to endorse a cause of action that would subject
to post hoc judicial scrutiny and assessment of damages the kind of political
differences, squabbles, and perceived slights that are inherent in a representative
government body such as a city council. [Citation.] Even assuming that
the type of conduct alleged in the complaint constitutes a violation of
the free speech clause by defendants, we conclude that money damages simply
are not an appropriate remedy." (Degrassi, supra, 29 Cal.4th at pp.
343-344, 127 Cal.Rptr.2d 508, 58 P.3d 360.)
Although Degrassi declined to recognize a constitutional tort action for
damages to remedy the asserted violation of article I, section 2(a), alleged
therein, it also emphasized the limited nature of its holding, stating:
"This does not mean that the free speech clause, in general, never
will support an action for money damages. Moreover, we do not consider
in this case whether any other state constitutional provision may support
a constitutional tort action for such damages. Rather, we conclude that
the loss or damage of which plaintiff here complains--interference with
her functioning and effectiveness as a legislator--does not support recognition
of a constitutional tort for damages, even assuming that such interference
may result from a violation of the free speech clause." (Degrassi,
supra, 29 Cal.4th at p. 344, 127 Cal.Rptr.2d 508, 58 P.3d 360.)
b. Trial court properly concluded Degrassi applies retroactively to this case.
As indicated, the Supreme Court issued its decision in Degrassi after the
jury rendered its verdict herein. Therefore, as a threshold matter, we
address whether the District could avail itself of the Degrassi decision
in moving for JNOV.
As a general rule, judicial decisions are given retroactive effect, even
if they represent a clear change in the law. (Newman v. Emerson Radio
Corp. (1989) 48 Cal.3d 973, 978-979, 258 Cal.Rptr. 592, 772 P.2d 1059.)
The exception is when considerations of fairness and public policy are
so compelling in a particular case that, on balance, they outweigh the
considerations that underlie the basic rule. (Id. at p. 983, 258 Cal.Rptr.
592, 772 P.2d 1059.) This exception applies in particular when a party
has justifiably relied on the former rule. (Ibid.; Smith v. Rae-Venter
Law Group (2002) 29 Cal.4th 345, 351, 127 Cal.Rptr.2d 516, 58 P.3d 367.)
In an effort to avoid a retroactive application of Degrassi, Motevalli
contends she duly relied upon Laguna, which authorized a claim for damages
for a violation of the free speech clause. (Laguna, supra, 131 Cal.App.3d
816, 182 Cal.Rptr. 813.) As the trial court found, this contention does
not withstand scrutiny. While it is true Motevalli invoked Laguna to the
extent she pled a claim because of its existence, she did not exclusively
rely on that case to the exclusion of others. Her complaint alleged various
causes of action and theories of recovery in addition to the claim for
damages for violation of the free speech clause.
Moreover, when Motevalli filed this action in July 2001, the Court of Appeal
decision in Degrassi, contrary to Laguna, already had been issued (November
2000) and the Supreme Court granted review in Degrassi in February 2001.
Thus, at the time Motevalli filed suit, there was a question as to the
viability of a free speech damages claim and the issue was pending before
the Supreme Court. Under these circumstances, Motevalli reasonably could
not have relied on the Laguna decision to her detriment.
We conclude there is no basis to deviate from the general rule that judicial
decisions are given retroactive effect. Accordingly, the trial court properly
found Degrassi applies retroactively to guide this case.
c. In light of Degrassi, Motevalli cannot maintain a cause of action for
damages for deprivation of her free speech rights under the California
Having concluded Degrassi applies retroactively, we examine whether the
trial court properly determined the Degrassi factors preclude Motevalli's
cause of action for damages for alleged violation of her free speech rights
under the California Constitution.
(1) Meaningful alternative remedies.
The initial factor set forth in Degrassi is whether a plaintiff has meaningful
alternative remedies. (Degrassi, supra, 29 Cal.4th at p. 342, 127 Cal.Rptr.2d
508, 58 P.3d 360.) The District contends Motevalli had ample alternative
remedies, specifically, an action for a writ of mandate to compel reinstatement
to her position (Code Civ. Proc., § 1085), a suit for injunctive
relief to enjoin the violation of her free speech rights (Code Civ. Proc.,
§ 526), as well as workers compensation for her alleged emotional
injury. However, given Motevalli's status as a probationary/provisional
teacher, it is questionable whether she could have obtained a writ of
mandate to compel the renewal of her contract, let alone back pay or other damages.
(2) Ascertainability of damages.
Another pertinent factor is the ascertainability of Motevalli's damages.
The Degrassi court was troubled by the absence of an objectively ascertainable
measure of damages in that case, which was based on allegations that defendants
improperly frustrated a city councilmember's ability to perform her
duties. (Degrassi, supra, 29 Cal.4th at p. 343, 127 Cal.Rptr. 2d 508,
58 P.3d 360.) Here, in contrast, to the extent Motevalli can establish
economic damages based on the nonrenewal of her teaching position, damages
would be readily ascertainable.
(3) "Adverse policy consequences."
However, the critical factor in this fact situation is whether recognition
of a damages action would produce "adverse policy consequences."
(Degrassi, supra, 29 Cal.4th at p. 343, 127 Cal.Rptr.2d 508, 58 P.3d 360.)
Here, plainly it would.
Untenured teachers have fewer rights than permanent teachers. This difference
is the product of an explicit legislative scheme. (See, e.g., § §
44911, 44915, 44929.21, 44932, 44948, 44953, 44954.) Recognition of a
constitutional damages action here would result in the anomaly of untenured
teachers denied rehiring having greater rights than tenured teachers who
have been discharged. A tenured teacher is required to exhaust his or
her internal administrative remedies before going to court (see Palmer
v. Regents of University of California (2003) 107 Cal.App.4th 899, 903-906,
132 Cal.Rptr.2d 567), which decision then would be reviewed on administrative
mandamus (Code Civ. Proc., § 1094.5), wherein the employer's
liability would be determined by a court before the employee could bring
an action for damages. (See Westlake Community Hosp. v. Superior Court
(1976) 17 Cal.3d 465, 482-483, 131 Cal.Rptr. 90, 551 P.2d 410 [plaintiff's
tort action for damages was barred until plaintiff sought and obtained
mandamus relief setting aside adverse disciplinary action] ).
However, if a probationary/provisional teacher who is not rehired were
allowed to proceed directly to court in a damages action in which liability
would be decided by a jury, that teacher would be in a position superior
to his or her tenured counterparts. To allow a probationary/provisional
teacher, such as Motevalli, to bring an action for damages in this context
would be to provide protection the Legislature chose to withhold.
Because it would be utterly anomalous to give an employee such as Motevalli
a constitutional tort remedy which would be superior to the remedies available
to a permanent teacher, the trial court properly granted JNOV under Degrassi
in favor of the District on Motevalli's cause of action for damages
under the California Constitution. [FN12]
FN12. Because we uphold the judgment entered pursuant to the grant of the
District's motion for JNOV, it is unnecessary to reach the District's
The judgment is affirmed. The parties shall bear their respective costs
We concur: CROSKEY and ALDRICH, JJ.