2019-00258065-CU-OE

Dean Shankland vs. CDCR

Nature of Proceeding: Hearing on Demurrer to First Amended Complaint

Filed By: Austin, Andrea R.

Defendant California Department of Corrections demurrer to Plaintiff Dean Shankland’s first amended complaint is sustained with and without leave to amend as set forth below. The motion to strike is dropped as moot.

Plaintiff Dean Shankland, who is currently employed by Defendant as a special agent in the Office of Internal Affairs (“OIA”), alleges causes of action for breach of contract and promissory estoppel based on allegations that he was denied a request for a lateral transfer.

Plaintiff alleges that he applied for a special agent position in February 2015. (FAC ¶ 8.) He alleges that a senior special agent informed him that while he met the educational requirements he lacked the two years’ experience with the primary responsibility for performing investigations at the Correctional Sergeant rank or higher. (Id.) Plaintiff entered into a Training and Development Plan for the special agent position to meet the requirement identified by the senior special agent. Defendant’s personnel estimated that Plaintiff needed only an additional one-and-a-half years’ experience with a primary responsibility for performing investigations, meaning that the Training and Development Plan was to run from August 17, 2015 through February 16, 2017. (Id. ¶ 10.)

At some point Defendant’s human resources staff began interpreting the minimum qualifications for the special agent position to require five years’ experience with a primary responsibility for performing investigations. On February 2, 2017, Plaintiff was informed he would need five years’ experience in that area. Plaintiff requested a copy of the minimum qualifications determination form used to evaluate whether he met the minimum qualifications but the request was denied, because it was considered an internal human resources form. (Id. ¶ 16.) Plaintiff appealed Defendant’s decision that he did not meet the minimum qualifications for the special agent position to the State Personnel Board which determined that he did not have the required five years’ experience. The SPB found he was lacking two years, eleven months and twenty-nine days of work with primary responsibility for performing investigations. Nevertheless, Plaintiff again applied for a Senior Special Agent position approximately one year and seven months later and on October 23, 2018 was informed that he did not meet the qualifications. (Id. ¶ 18.) Plaintiff alleges that Defendant arbitrarily changed its interpretation of the minimum qualifications for the special agent position after telling him that the Training and Development Plan would suffice to meet those qualifications.

Plaintiff alleges that he had an “oral contract” with Defendant where it was agreed that his six months experience as a Correctional Lieutenant and the one-and-a-half-years of the Training and Development Plan would satisfy the needed experience for the special agent position and that in exchange he forewent pursuing opportunities to obtain a permanent full-time position as a Correctional Captain. He alleges that Defendant breached the agreement by changing its interpretation of the minimum qualifications and withholding documentation explaining the change.

First Cause of Action (Breach of Oral Contract)

Defendant’s demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action.

Defendant first argues that Plaintiff has failed to identify any statutory basis for its liability and also failed to allege compliance with the Tort Claims Act.

All common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution or by statute have been abolished. (Gov’t Code § 815.) In order to state a cause of action for government tort liability, ‘every fact essential to the existence of a statutory liability must be pleaded with particularity, including the existence of a statutory duty.

[citations omitted] Since the duty of a governmental agency can only be created by statute or [enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.’” (Zuniga v. Housing Authority (1995) 41 Cal.App.4th 82, 96.) However, Government Code § 814 makes clear that these limitations do not apply to “liability based on contract or the right to obtain relief other than money or damages.” (Gov’t Code § 814.) Thus, the failure to identify a specific statute for the first cause of action for breach of oral contract does not render the cause of action deficient.

The Court also rejects the claim that Plaintiff has failed to allege compliance with the Government Tort Claims Act. Generally, no suit for money or damages may be brought against a public entity or public employee until a written claim has been presented to the entity and either acted upon or deemed rejected. (Gov’t Code §§ 945.4, 950.2.) “Compliance with the claims statute is mandatory, and failure to file a claim is fatal to the cause of action.” (Pacific Tel. & Tel. Co. v. Cnty. of Riverside (1980) 106 Cal.App.3d 183, 188.) Compliance with the Tort Claims Act is an element of a cause of action for damages against a public entity or official. (State v. Superior Court (2004) 32 Cal.4th 1234, 1244.) This requirement applies to contract claims seeking money damages as well as tort claims. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 740.) Plaintiff, however does not seek money or damages but rather seeks specific performance of the alleged contract. This is not a claim for money or damages subject to Government Code § 945.4.

However, state employment is held by statute, not contract, and civil service employees cannot assert breach of contract causes of action. (Shoemaker v. Meyers (1990) 52 Cal.3d 1, 23-24; Hill v City of Long Beach (1995) 33 Cal.App.4th 1684, 1690; Miller v State of California (1977) 18 Cal.3d 808, 813-814.) Plaintiff presents no argument or authority which allows for a breach of contract claim by a civil service employee.

The demurrer to the first cause of action is sustained without leave to amend. The law is clear that a breach of contract cause of action by a civil service employee is not cognizable.

Second Cause of Action (Promissory Estoppel)

Defendant’s demurrer is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action.

Defendant again argues that Plaintiff failed to identify a statutory basis for liability and also failed to allege compliance with the Tort Claims Act. This is a common law claim that ordinarily would be subject to the immunity provided in Government Code § 815. However, as to the failure to identify a specific statute, Plaintiff is correct that there are cases which allow common law promissory estoppel claims against a public entity.

(E.g., Stanson v. San Diego Coast Regional Commission (1980) 101 Cal.App.3d 38.) To the extent that Defendant argues that Plaintiff failed to satisfy the claims presentation requirements of the Tort Claims Act, it is incorrect as this is not a claim for money or damages.

Defendant also argues that this cause of action is deficient for the same reasons as the contract claim because “promissory estoppel is an equitable theory rooted in contract.” (Piccinini v. California Emergency Management Agency (2014) 226 Cal.App.4th 685, 689.) “[A]n estoppel cannot rewrite a statutory limitation of a benefit or privilege.” (Smith v. Governing Board of Elk Grove Unified School District (2004) 120 Cal.App.4th 563, 569.) “[T]he authority of a public officer cannot be expanded by estoppel” and a claimed contract is void if it conflicts with the Civil Service Act. (Patten v. State Personnel Board (1951) 106 Cal.App.2d 168, 175.) And, generally, a general tort statute is insufficient by itself to serve as a basis for direct public liability. Eastburn v Regional Fire Protection Auth. (2003) 31 Cal.4th 887, 897.

Plaintiff’s premise, however, is that an employee of Defendant informed him that he would qualify for a special agent position if he completed the Training and Development Plan and that Defendant should now be estopped from contending otherwise. As recognized by Plaintiff in his opposition, it is a “well-established proposition that an estoppel will not be applied against the government if to do so would effectively nullify ‘a strong rule of policy, adopted for the benefit of the public, …’” (City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 493.) Though it may be applied “where justice and right require it.” (Id.) None of the cases cited by Defendant, however, involve the application of estoppel in the civil service employment context. Rather they involve a dispute over title and boundary problems related to the boundary between public trust tidelands and private uplands (Id.); a dispute regarding a public works contract involving a promise in a solicitation of bids to award a contract to the lowest responsible bidder (Swinerton & Walberg Co. v. City of Inglewood-Los Angeles Civic Center Authority (1974) 40 Cal.App.3d 98 [where the court found that an award of damages to the party that brought the promissory estoppel claim would also be in the interest of the public which has an economic interest in public contracts being awarded to the lowest responsible bidder]; see also Kajima Ray/Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305]; or a situation where a party claimed the San Diego Coast Regional Commission could not insist upon a permit requirement for a building where the party was told no permit was needed and then just before construction was complete was told a permit was needed and the party claimed a vested right to build (Stanson v. San Diego Coast Regional Commission (1980) 101 Cal.App.3d 38).

Contrary to Plaintiff’s argument, this cause of action, at least as currently alleged, is not similar to Stanson. As just discussed above, Stanson involved a specific claim based on specific case law that the builder had a vested right to build and because of that right, the public entity was estopped from, insisting on a permit requirement. (Id. at 48-49.) There is no allegation that Plaintiff had obtained a vested right of any kind but only an allegation that an employee represented that completion of certain training would meet the minimum qualifications for the special agent position and that he was later informed that the minimum qualifications had changed. Invoking estoppel under these circumstances would undermine public policy. Indeed, it “would have the effect of granting to the state’s agents the power to bind the state merely by representing that they have the power to do so.” (Patten, surpa, 106 Cal.App.2d 168, 175 [quoting Boren v. State Personnel Board (1951) 37 Cal.2d 634, 643.) Applying estoppel would run afoul of the principal that “a precedent is not established through which, by favoritism or otherwise, the public interest may be mulcted or public policy defeated.” ( Poway Royal Mobilehome Owners Assn. v. City of Poway (2007) 149 Cal.App.4th 1460, 1471.) Government Code § 18931 provides that the SPB establishes minimum qualifications for positions and invoking estoppel based on the representations of Defendant’s employee would defeat the public purpose underlying the Civil Service Act as it would effectively prevent a public entity from establishing such qualifications, or altering such qualifications.

While the Court is not clear as to how Plaintiff could amend this cause of action, because a promissory estoppel cause of action is at least theoretically possible (as opposed the first cause of action which simply is not cognizable, and as to which amendment would be futile) and because this is the first challenge to the complaint the Court will allow leave to amend with respect to the second cause of action only.

Given that leave was given to file an amended complaint, the motion to strike the declaration attached to the FAC is dropped as moot.

Where leave was given Plaintiff may file and serve an amended complaint no later than October 14, 2019. Defendant shall file and serve its response within 30 days thereafter, 35 days if the amended complaint is served by mail as modified by the CCP 430.41 extension if necessary.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.