Roumi v. Cal. Institute of Technology CA2/2 ( 2021 )

Filed 10/1/21 Roumi v. Cal. Institute of Technology CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
FARSHID ROUMI et al., B296273, B301541
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.
v. BC654132)
CALIFORNIA INSTITUTE OF
TECHNOLOGY et al.,
Defendants and Respondents.
APPEALS from judgments of the Superior Court of Los
Angeles County, Monica Bachner, Judge. Affirmed.
Greene Broillet & Wheeler, Mark T. Quigley, Christian T.
F. Nickerson; Esner, Chang & Boyer, Stuart B. Esner and Kevin
K. Nguyen for Plaintiffs and Appellants.
Hueston Hennigan, John C. Hueston, Moez M. Kaba,
Michael H. Todisco and Joseph A. Reiter for Defendants and
Respondents.
A jury determined that respondent California Institute of
Technology (Caltech) did not retaliate against appellant Farshid
Roumi. (Lab. Code, § 1102.5.)1 Substantial evidence supports
the jury’s finding that Caltech did not discharge or take adverse
employment action against Roumi, whose temporary position at
Caltech was tied to a federal grant. When the grant ended, his
position ended. We also uphold the court’s pretrial summary
adjudication rulings. We affirm.
FACTS AND PROCEDURAL HISTORY
After earning a PhD. in mechanical engineering, Roumi
was appointed as a postdoctoral scholar at Caltech in 2011 for a
series of fixed terms that varied from a few months to one year.
His final appointment was in 2013. Roumi never joined Caltech’s
faculty. His faculty sponsor was respondent Michael Hoffmann, a
research scientist and engineer who has been at Caltech for over
35 years. Roumi used Hoffmann’s laboratory.
Caltech protects intellectual property developed on campus.
In 2011, Roumi disclosed his idea for a battery system to Caltech.
Caltech applied for a patent. Roumi signed an agreement stating
that he must disclose any invention arising from his use of
1 “An employer, or any person acting on behalf of the
employer, shall not retaliate against an employee for disclosing
information . . . to a government or law enforcement agency” if
the employee has reasonable cause to believe the information
shows a violation of law. Nor may an employer or person acting
on the employer’s behalf retaliate against an employee “for
refusing to participate in an activity that would result in a
violation of state or federal statute, or . . . rule or regulation.”
(Lab. Code, § 1102.5, subds. (b), (c).) Undesignated statutory
references are to the Labor Code.
2
Caltech facilities. He agreed to “assign [his] entire right, title,
and interest in and to such inventions” to Caltech.
In 2014, Roumi sought Department of Energy (DOE)
funding to develop the battery system concept Caltech had
patented. The application was submitted by Roumi’s company,
appellant Parthian Energy LLC (Parthian). Roumi told DOE
that Caltech would contribute $150,000. Appellants applied to
DOE without Caltech’s knowledge or approval, violating Caltech
policies requiring preapproval for funding requests.
In August 2014, DOE informed Roumi that his application
was selected. He then disclosed the application to Caltech.
Caltech told Roumi he had the option to leave Caltech and keep
the DOE award; however, if Roumi left, Caltech would not pay
$150,000 for cost sharing.
In November 2014, Roumi transferred the DOE award from
Parthian to Caltech. Caltech submitted a revised proposal to
DOE showing Caltech as the sole recipient of the award. Caltech
retained all intellectual property rights created in connection
with the proposed battery project.
In December 2014, Caltech and DOE entered an agreement
(Agreement) for the battery project (Project). Roumi and
Parthian are not parties to the Agreement. DOE committed
$591,364 to complete the Project in two budget periods.
Milestones had to be reached in the first budget period to obtain
funding for the second budget period; DOE had sole discretion to
determine if milestones were reached. The Agreement made
Caltech responsible for cost sharing in the amount of $150,000.
On January 16, 2015, Caltech changed Roumi’s status from
postdoctoral scholar to “staff.” Its letter to Roumi states (1) “your
temporary position is expected to end on November 30, 2016”;
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(2) “This is not a contract of employment”; and (3) “your position
may end at any time, with or without cause or notice—and your
employment terminated—before the expected end date.” His
position was tied to the DOE grant.
Hoffmann was the Project principal investigator. As
coprincipal investigator, Roumi conducted research, gathered
data, supervised research assistants, and prepared reports. In
February and April 2015, Roumi selected research assistants
Zarui Chikneyan and Laleh Kasmaee. They soon complained of a
hostile environment, saying Roumi bullied, maltreated, and
insulted them, provided no coaching, constantly changed their
assignments, and imposed arbitrary deadlines. Caltech
counseled Roumi about his behavior in June 2015 and decided
that he should not directly supervise the two women.
Though Roumi claimed he worked consistently on the
Project, researchers “never” saw him in the lab. Multiple
witnesses testified that Roumi was required to spend all his time
on the Project because his salary was funded by DOE. Roumi
admittedly worked on multiple battery ideas and did not spend
all his time on the DOE Project.
Further disputes arose. Roumi accused Caltech of
misusing DOE money to pay his assistants after they stopped
working on the Project. After an audit was conducted, Caltech
informed DOE that there was no evidence of mischarging.
Kasmaee testified that she and Chikneyan worked on the Project
until the end of June 2015. E-mails show Roumi assigned them
research in May and asked for their reports in June, rebutting
his claim that they stopped working in April 2015.
Roumi’s relationship with Hoffmann deteriorated. In July
2015, Hoffmann told Roumi—after observing that Roumi “failed
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to show up for work on campus for almost a month”—that he
could no longer serve as faculty sponsor; Roumi had to find
another sponsor or leave Caltech. Professor Morteza Gharib
agreed to become Roumi’s faculty sponsor.
Roumi accused Hoffmann of research misconduct, defined
in Caltech’s policy manual as “fabrication, falsification or
plagiarism in proposing, performing, or reviewing research, or in
reporting research results.” Roumi claimed Hoffmann asked him
to submit “old and unrelated” data to DOE in a progress report.
Caltech investigated Roumi’s claim and concluded that no
misconduct occurred. Instead, material was cited from Roumi’s
PhD. thesis as a foundation to explain new concepts being
explored on the Project. Hoffmann directed Roumi to “put
together a report including the material from your thesis . . .
along with the early research results.” Roumi agreed that his
thesis was the basis for the Project.
Caltech investigated Roumi’s claim that Hoffmann
retaliated against him for being a whistleblower and denied him
access to a lab to research the Project. The claim was rejected.
Caltech informed Roumi in writing that he was “never banned
from using the lab” and instructed him to go there to complete
the work specified in the Agreement by the DOE deadline.
Roumi testified that he did not return to the lab after July 20,
2015, because “I wanted something different.”
In November 2015, Caltech informed DOE that it found no
wrongdoing regarding Roumi’s complaints of (1) mischarging
DOE for the salaries of Chikneyan and Kasmaee, (2) research
misconduct by Hoffmann, and (3) retaliation against Roumi by
banning him from the lab. DOE wrote Roumi that it
“consider[ed] the matter resolved and will take no further action.”
5
Caltech arranged for Roumi to have his own lab space and
assigned him an experienced technical advisor to help move the
Project along. Caltech gave Roumi mentoring and coaching to
succeed in his interactions with others. The purpose of these
efforts was to help Roumi meet DOE milestones. Roumi told
DOE the new lab was “fully operational with all equipment
needed.”
Caltech hired two new research assistants to work on the
Project, John Thorne and Saad Azam. Both men said Roumi was
difficult to work with, set unrealistic deadlines, and constantly
changed their assignments. Thorne testified that Roumi was
disrespectful and threatened to have him deported. Roumi
seldom came to work or met with researchers, even as DOE
deadlines loomed.
In November 2015, DOE and Caltech amended the
Agreement to extend the first budget period by six months, until
May 2016. Dr. Gharib was the Project’s principal investigator
and Roumi remained the coprincipal investigator. Roumi and
Hoffmann had no further interaction after December 2015.
Roumi claimed it was “impossible” for him to make
progress on the Project, so he focused instead on his non-DOE
work. In May 2016, Roumi asked DOE to continue the Project.
DOE required fabrication and testing of a battery by mid-2016.
DOE evaluated Roumi’s application and refused to
authorize a continuation. Its letter states, “Budget Period 1
objectives and milestones have not been satisfactorily achieved.”
Dr. Gharib tried to convince DOE to continue, noting that it was
“embarrassing to say we failed.” There was no mechanism to
appeal DOE’s decision.
6
Roumi sought to refute DOE’s statements about the lack of
progress on the Project. He repeatedly e-mailed DOE, saying “it
is not right that 3 researchers lose their jobs after working
extremely hard to meet all the milestones.” On July 22, 2016,
DOE informed Caltech that the Project was canceled. DOE and
Caltech invested $950,000 before the Project ended.
On July 26, 2016, Caltech ended Roumi’s assignment, along
with researchers Thorne and Azam, explaining that DOE had
stopped funding the Project. The positions were contingent on
DOE funding. Hoffmann was not involved in the elimination of
positions funded by DOE.
Caltech informed Roumi that it could help him explore
other employment opportunities. Roumi never applied for other
positions at Caltech. After Roumi left, Caltech gave him
equipment worth $160,000 so he could continue working on his
battery project and spent $10,000 to move it to his new location.
In 2018, Caltech and Parthian entered a license agreement
for Roumi’s battery technology. Caltech granted Parthian a
license to make and sell battery products under Caltech’s patent.
Appellants’ Lawsuit
In 2017, appellants sued Caltech and Hoffmann. Roumi
alleged that he was “an employee, agent, joint venture[r], and/or
independent contractor” at Caltech who reported “illegal,
unethical, and fraudulent activity” at Caltech, including research
misconduct and misuse of federal funds. He claimed respondents
harassed, excluded, humiliated, intimidated and retaliated
against him for his whistleblowing activity, obstructed his career
opportunities, and wrongfully terminated him.
The lawsuit alleged a violation of section 1102.5; wrongful
termination; breach of the implied covenant of good faith and fair
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dealing; interference with prospective economic advantage;
interference with contractual relations; and breach of an implied-
in-fact contract.
Summary Judgment Motions
Respondents brought motions for summary judgment in
2018. The court granted summary judgment for Hoffmann. It
denied Caltech’s motion for summary judgment; however, it
adjudicated in Caltech’s favor causes of action for breach of the
implied covenant of good faith and fair dealing; tortious
interference with contractual relations and prospective economic
advantage; breach of an implied-in-fact contract; and an
accounting. The court rejected Parthian’s claims. On March 1,
2019, a final judgment was entered in favor of Hoffmann and
against Parthian.
The Jury Verdict
Roumi had a month-long trial on his remaining claim
against Caltech for violating section 1102.5. The parties jointly
created the special verdict form. After three hours of
deliberation, the jury returned a unanimous verdict for Caltech.
Roumi did not seek clarification of the verdict before jurors were
discharged.
The jury found: (1) Caltech was Roumi’s employer;
(2) Caltech believed Roumi disclosed or might disclose that
Hoffmann directed him to submit a report to DOE with old or
unrelated information or Hoffmann or Caltech misused federal
funding; (3) Roumi refused to submit a report to DOE with old or
unrelated information or refused to misuse federal funding; (4) he
had cause to believe his participation in such misconduct would
violate federal law; and (5) Caltech did not “discharge or take
8
other adverse employment action against Roumi.”2 The court
entered judgment for Caltech.
Motion For New Trial
Roumi moved for a new trial. He asserted that the jury’s
finding on question 5—that Caltech did not discharge him—was
contrary to the great weight of evidence. He cited a missive from
Caltech informing him that DOE “funding under which you are
working is not being continued. As a result, your assignment
with Caltech is being terminated.” Because the jury was
instructed not to answer questions 6 through10 on the verdict
form, it did not decide if Caltech discharged him because DOE
stopped funding or in retaliation for his protected conduct.
The court denied the motion for new trial. It found “there
was substantial, credible evidence to support the jury’s verdict.”
Documentary evidence and trial testimony show Caltech created
a temporary position for Roumi, “lasting only for the duration of
the DOE grant and depend[ing] on the availability of DOE
funding.” When DOE terminated the grant in July 2016, three
positions funded by the grant, including Roumi’s, came to their
natural conclusion.
2 After answering “no” to question 5, the jury did not reach
the remaining questions: (6) was Roumi’s disclosure or refusal to
participate in federal law violations a contributing factor in
Caltech’s decision to discharge him; (7) did Caltech cause Roumi
harm; (8) would Caltech have discharged Roumi anyway for
legitimate, independent reasons; (9) did Caltech take other
adverse employment actions against Roumi; (10) would Caltech
have taken other adverse employment actions for legitimate,
independent reasons; (11) and (12) damages.
9
Appeals
An appeal was taken from the judgment for Hoffmann on
March 8, 2019. A second appeal was taken from the judgment for
Caltech on October 3, 2019, after the court denied Roumi’s
motion for new trial. The appeals were consolidated for purposes
of briefing, argument, and decision.
DISCUSSION
1. Sufficiency of the Evidence
Roumi challenges the jury’s finding that Caltech did not
“discharge or take other adverse employment action” against
him. Applying customary rules of appellate review, we conclude
that substantial evidence supports the finding. “[W]e are bound
by the rule that when ‘a finding of fact is attacked on the ground
that there is not any substantial evidence to sustain it, the power
of an appellate court begins and ends with the determination as
to whether there is any substantial evidence contradicted or
uncontradicted which will support the finding of fact.’ ” (Gray v.
Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.)
We review the record in the light most favorable to the
judgment, presume the existence of every fact the jury could
reasonably deduce from the evidence, resolve evidentiary conflicts
in favor of the findings, and do not reassess witness credibility.
(People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
To show retaliation under section 1102.5, a plaintiff must
prove (1) he engaged in protected activity; (2) defendant subjected
plaintiff to an adverse employment action; and (3) a causal link
between the first two factors. (Ross v. County of Riverside (2019)
36 Cal.App.5th 580, 592.) The jury found Caltech did not subject
Roumi to an adverse employment action. He did not convince the
jury there was a nefarious reason for his departure from Caltech.
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After signing the Agreement, Caltech changed Roumi’s
status from postdoctoral scholar to “staff.” In a letter, it informed
him that his “temporary position” “may end at any time, with or
without cause or notice.” The letter was sent long before Roumi
accused respondents of mischarging DOE, research misconduct,
or retaliation. Trial testimony supports a conclusion that
Roumi’s position ended because DOE funding ended. Multiple
Caltech employees attested that DOE funding lapsed and denied
Roumi was “fired.” The testimony of one credible witness is
substantial evidence sufficient to support a factual finding. (In re
Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Dr. Gharib testified that Roumi “wasn’t fired, it was the
end of the project because funding was over, we didn’t have any
funding so . . . we had to dismantle the team.” An engineering
administrator testified, “Dr. Roumi wasn’t fired. He was laid off
because we lost funding.” The director of research compliance
stated that Roumi “was laid off because the DOE project ended.”
The director of human resources testified that Roumi stopped
working at Caltech when the Project was canceled because “all
the positions that were affiliated with that were eliminated.” The
engineering division chairman said Roumi left because “[h]is
employment at Caltech was tied to the DOE funding.” The vice-
president of human resources said Roumi left Caltech because
DOE “funding was exhausted.”
Roumi knew his position would end when DOE ended the
Project. He wrote to DOE in July 2016 that without its funding,
“Three Caltech employees are going to lose their jobs.” As Roumi
anticipated, Caltech laid off Roumi, Thorne, and Azam when
DOE terminated funding.
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2. Caltech’s Liability Was Not a Legal Question
Roumi asserts, “Caltech’s conduct was an adverse
employment action as a matter of law.” He is mistaken. He
asked the jury to make a factual finding, inviting the panel to
weigh the facts and find in his favor on this element of the tort.
He did not request a directed verdict at trial—with good reason,
because the evidence was in dispute.
The instructions set forth the factual dispute. They state,
“Roumi claims that Caltech discharged or took other adverse
employment actions against him in retaliation for his disclosure
of information of an unlawful act or refusal to participate in an
unlawful act.” “Roumi must prove that he was subjected to an
adverse employment action. Adverse employment actions are not
limited to ultimate actions, such as termination or demotion” but
can also include conduct that materially and adversely affect
employment, although “minor or trivial actions or conduct that is
not reasonably likely to do more than anger or upset an employee
cannot constitute an adverse employment action.”
In closing argument, Roumi addressed question 5 on the
verdict form. His counsel said, “[Y]ou’re going to be asked, ‘did
the defendants engage in adverse conduct and/or discharge?’
They’re separate. You can find that they discharged him
legitimately, but still look at all the other things they did and
still find in favor of the plaintiff, the kicking out of the lab, not
appealing, filing all the late reports, not giving him the
financials. If you find that those are adverse events connected to
his report of Dr. Hoffmann, you can still make a finding for the
plaintiff, even if you find that the discharge was justified.”
After weighing the evidence, the jury found Roumi failed to
prove discharge or an adverse employment action. He now seeks
12
to recast the issue as one of law, though his posttrial motion did
not suggest this was a legal issue. Instead, he said a new trial is
warranted because “the jury’s answer to verdict question 5 (the
sole basis for its verdict) was against the great weight of the
evidence.”
Roumi denies that the verdict form was confusing or that
jurors misunderstood question 5. He instead argues that the
jury’s verdict is against “uncontroverted” evidence. However, the
opening brief does not cite all material evidence from the 17
volumes of reporter’s transcript: It over-relies on Roumi’s
testimony, which was refuted by many witnesses. Reviewing
courts presume the record contains evidence sustaining every
finding of fact. An appellant must set forth all material evidence,
not merely the facts favoring himself; otherwise, the court may
treat the substantial evidence issue as waived. (Foreman &
Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Doe v. Roman
Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th
209, 218.)
Roumi asserts that his work at Caltech was not dependent
on the Agreement. This ignores ample testimony, cited in part 1,
ante, that his position was tied to DOE funding. Roumi
admittedly worked on matters unrelated to the Project while
being funded by DOE; an assistant testified that Roumi “never”
came to the lab. DOE determined that milestones were not
satisfactorily achieved and terminated funding. The jury could
find that Caltech did not take adverse action; rather, DOE’s
unilateral decision to end the Project for lack of achievement
caused Roumi’s position to expire by its terms.
The record does not support Roumi’s claim that Caltech
“cause[d] or orchestrate[d] the nonrenewal of the DOE contract.”
13
The DOE grant ended because Roumi failed to meet milestones.
Researchers were hired to help him succeed but he did not coach
them or manage their work, constantly changed their
assignments, set arbitrary deadlines, and maltreated them. He
was absent from work. There is no proof that Caltech instructed
or encouraged DOE to end the Project. On the contrary, principal
investigator Gharib wrote DOE urging it to reconsider its
decision to terminate Project funding; he testified that the failure
of the Project was “embarrassing.”
Roumi suggests that Caltech could not end its relationship
with him after DOE terminated Project funding. The record does
not support a conclusion that Caltech had to keep Roumi on staff
after DOE funding ended. Roumi was not a faculty member. He
had a series of “scholar” appointments, then had a position that
tracked the term of the Project. Roumi cannot bootstrap brief
appointments and a temporary position into a promise of
continued or indefinite employment. He did not prove he had a
right to work at Caltech.
The record shows Caltech investigated Roumi’s complaints.
It supported him with coaching and assistance it did not give
others, to help him succeed. Caltech had a financial stake in the
success of the Project: It owns the intellectual property rights,
invested hundreds of thousands of dollars in the Project, and
equipped a new lab for Roumi. Caltech had no incentive to have
the Project fail. After DOE funding ended, Caltech gave Roumi
$160,000 in equipment for a lab to continue his research and
granted Parthian a license to make batteries under Caltech’s
patent, showing that Caltech still wants appellants to succeed.
The record shows Roumi insulted, bullied, threatened, and
mismanaged the four researchers he selected. Though his salary
14
was funded by DOE, he did not come to the lab to work on the
Project as DOE deadlines approached, choosing to work on other
matters. Given the evidence that Roumi sabotaged the Project—
not respondents—it is not reasonably likely the jury would have
found in his favor, even had it answered “yes” to question 5.
There is no miscarriage of justice requiring reversal.
(Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
3. Ruling on Summary Judgment
An intermediate order summarily adjudicating claims is
reviewable after entry of final judgment. (Code Civ. Proc., § 906;
Jennings v. Marralle (1994) 8 Cal.4th 121, 128.) We review
de novo the court’s summary adjudication of appellants’ claims.
Respondents bear the initial burden of showing that there is no
triable issue of act and they are entitled to judgment as a matter
of law. Appellants must then show a triable issue of material
fact. (Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.)
a. Tortious Interference Claim
The elements of the tort of intentional interference with
prospective economic advantage are: (1) an economic relationship
between the plaintiff and a third party with the probability of
future economic benefit to the plaintiff; (2) the defendant’s
knowledge of the relationship; (3) intentional acts by the
defendant designed to disrupt the relationship; (4) actual
disruption of the relationship; and (5) harm to the plaintiff
proximately caused by the defendant. (Blank v. Kirwan (1985) 39
Cal.3d 311, 330 (Blank); Roy Allan Slurry Seal, Inc. v. American
Asphalt South, Inc. (2017) 2 Cal.5th 505, 512 (Roy Allan).)
Appellants allege that they had “economic relationships
and had prospective economic advantages with the [DOE] that
15
resulted in economic benefit to Plaintiffs and would have resulted
in economic benefit to Plaintiffs in the future.” Respondents
disrupted these relationships by ending Roumi’s employment,
misappropriating the DOE award, giving DOE false information,
shutting down Roumi’s lab, and interfering with his right to
practice his occupation.
The evidence shows appellants cannot establish their
interference claim. It is undisputed that appellants lacked
Caltech’s approval to apply for a DOE award or to represent that
Caltech would contribute $150,000. When it belatedly learned of
the DOE application, Caltech told appellants they could keep the
award, leave Caltech and find another partner. Appellants did
not keep the award or leave Caltech. Instead, they transferred
the award to Caltech. The resulting Agreement was signed by
Caltech and DOE. Caltech shared the cost of the Project and
owns the intellectual property rights associated with it.
An impediment to appellants’ claim is that the tort applies
to “ordinary commercial dealings” among private entities.
(Blank, supra, 39 Cal.3d at p. 330.) DOE is a government agency.
Appellants’ hope to contract with DOE “ ‘cannot be characterized
as an economic relationship.’ ” (Ibid.)
Caltech cannot be found liable for interference in any
event. “There is an important limitation to the use of [tortious
interference] as a remedy for the disruption of contractual
relationships. It can only be asserted against a stranger to the
relationship. ‘[C]onsistent with its underlying policy of protecting
the expectations of contracting parties against frustration by
outsiders who have no legitimate social or economic interest in
the contractual relationship, the tort cause of action for
interference with a contract does not lie against a party to the
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contract.’ ” (Kasparian v. County of Los Angeles (1995) 38
Cal.App.4th 242, 262.) “[T]he same rationale should also bar
prosecution of the tort of interference with prospective economic
advantage against a party to the relationship from which the
plaintiff’s anticipated economic advantage would arise.” (Ibid.)
As a party to the Agreement, Caltech could not interfere
with it. Appellants argue, however, that they “had an economic
relationship with the DOE that was broader than the initial
phase of the DOE-Incubator award, which was the only thing
assigned to Caltech. In other words, plaintiffs’ entire
relationship with DOE was not assigned, only a singular award.”
Appellants rely on Roumi’s declaration, in which he asserts
that when DOE accepted Parthian’s grant application, “I did not
need Dr. Hoffmann or Caltech to complete my battery projects”
because there were “several locations where I could complete my
battery projects.” Moreover, a DOE manager told Roumi that if
initial efforts were successful, DOE “would likely provide” more
funding for the Project. From this, appellants infer the existence
of a prospective economic relationship with DOE.
To determine a future economic relationship, courts look to
“ ‘a background of business experience on the basis of which it is
possible to estimate with some fair amount of success both the
value of what has been lost and the likelihood that the plaintiff
would have received it if the defendant had not interfered.’ ”
(Youst v. Longo (1987) 43 Cal.3d 64, 75.)
There is no track record of regular commerce here.
Appellants’ hope to contract with DOE in the future speculates
that DOE will continue its discretionary funding of research in
appellants’ field, that appellants’ application would be approved,
and that they could find a cost-sharing partner or pay the cost
17
themselves should they receive an award. A tort cannot be based
on so many speculative, hypothetical contingencies.
Appellants failed to show an existing economic relationship
with DOE or the probability of a future relationship. There is “no
sufficient degree of certainty” that appellants will receive an
anticipated benefit from a government agency. (Roy Allan,
supra, 2 Cal.5th at p. 518.) Roumi did not take the DOE award
to any of the “several locations” where he could complete his
battery projects. He and Parthian chose to transfer the award—
and the economic relationship—to Caltech. His initial efforts did
not convince DOE to continue funding the Project. Appellants
concede that after the Project ended, DOE denied their
subsequent grant applications.
There was no showing the Project would lead to DOE
opportunities for appellants who had “at most a hope for an
economic relationship and a desire for future benefit.” (Blank,
supra, 39 Cal.3d at pp. 330–331; Westside Center Associates v.
Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 527.) After
Parthian relinquished its interest in the award, there was no
existing economic relationship between appellants and DOE.
Respondents did not “interfere” with appellants’ speculative
future relationship with DOE.
b. Section 1102.5 Claim Against Hoffmann
Roumi contends that the court erred in granting summary
judgment for Hoffmann. He argues that Hoffmann is liable for
violating section 1102.5, forbidding retaliation by “an employer or
any person acting on behalf of the employer.” The jury
exonerated Caltech on this claim. By extension, Hoffmann,
“acting on behalf of” Caltech, is not liable. There is no need for
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statutory interpretation about personal liability to reach this
conclusion.
Roumi’s claim against Caltech was predicated on
Hoffmann’s conduct. The jury found Caltech believed Roumi
disclosed to DOE that (a) Hoffmann directed him to submit a
report to DOE with old or unrelated information or (b) Hoffmann
or Caltech engaged in misuse of federal funding. Nonetheless,
the jury found that Caltech did not violate section 1102.5 by
subjecting Roumi to adverse action.
Collateral estoppel applies if: (1) an issue decided in a prior
action is identical to one in the current action; (2) final judgment
was entered in the prior action on the merits; and (3) the party
being estopped participated in the prior action or was in privity
with a party. (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865,
874; Alhino v. Starr (1980) 112 Cal.App.3d 158, 170.)
Having lost at trial against Caltech, Roumi cannot
relitigate the same claim against Caltech’s employee. (Burdette
v. Carrier Corp. (2008) 158 Cal.App.4th 1668, 1682–1683, 1689
[after losing a defamation case against an employer, plaintiff is
estopped from suing employees for defamation]; Takahashi v.
Board of Education (1988) 202 Cal.App.3d 1464, 1477 [employees
acting in the scope of their employment cannot be sued for
wrongful termination after their employer is absolved of the same
claim].)
Hoffmann is being sued for his involvement—while acting
in the course and scope of his employment at Caltech—in adverse
actions against Roumi. Roumi, the party against whom the bar is
being asserted, brought the action against Caltech; Parthian is in
privity with Roumi, its owner. All prerequisites to asserting res
judicata or collateral estoppel are satisfied. Hoffmann is entitled
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to assert the jury’s verdict for Caltech as a bar to relitigating his
actions “on behalf of” Caltech under section 1102.5.
DISPOSITION
The judgments are affirmed in both appeals. Appellants to
bear costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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