Page 1
Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
Only the Westlaw citation is currently available.
California Rules of Court, rule 8.1115, restricts
citation of unpublished opinions in California
courts.
Court of Appeal, Second District,
Division 8.
Babak PISHVAEE, Plaintiff and Appellant,
v.
REGENTS OF the UNIVERSITY OF CALIFOR-
NIA, et al., Defendants and Respondents.
No. B210446.
(Los Angeles County Super. Ct. No. SC087215).
Aug. 30, 2010.
APPEAL from a judgment of the Superior Court of
Los Angeles County. John A. Kronstadt, Judge. Af-
firmed.
Pishvaee & Associates, Siamak Pishvaee; and
James M. Tillipman, for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Alan R. Zucker-
man and Keri Lynn Bush, for Defendants and Re-
spondents.
BIGELOW, P.J.
*1 This appeal arises from a summary judgment in
favor of the defendant employer in an action al-
leging violations of the Fair Employment and
Housing Act (FEHA) (see Gov.Code, § 12940 et
FN1
seq.) and related claims. We affirm.
FN1. All further section references are to
the Government Code except as noted.
FACTS
The Employment History
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
At all relevant times, Gregory S. Payne, Ph.D. (a
named defendant) was employed by UCLA (a
FN2
named defendant) as a member of the faculty
in the Department of Biological Chemistry. Dr.
Payne had responsibility for determining the direc-
tion of research in his lab, and for obtaining grants
to fund the research. The research in the lab was
conducted by staff research associates (SRAs),
Ph.D./graduate students (GSRs), and postdoctoral
research fellows (postdocs), all of whom acted un-
der Dr. Payne's supervision, in accord with policies
established by UCLA and the department. Dr.
Payne made all decisions regarding which projects
would be pursued in the lab, and who in the lab
FN3
would work on what project.
FN2. To be more precise, the Regents of
the University of California are a named
defendant.
FN3. After initially attempting to compile
facts and a procedural history based on the
parts of appellant's appendix cited in
Pishvaee's opening brief, we abandoned
the effort. References to his appendix in
Pishvaee's opening brief regularly failed to
match up with stated facts, and documents
and/or parts of the pages of the appendix
were either out of order, or missing. In ad-
dition, the page numbers stamped in the
appendix were largely unreadable, appar-
ently for want of ink in the number-
stamper. In recounting the facts and pro-
cedural history of Pishvaee's case, we have
relied on the Respondents' appendix sub-
mitted by Dr. Payne and UCLA.
In 1989, UCLA conferred a B.S. in biochemistry on
plaintiff Babek Pishvaee. In 1990, Dr. Payne hired
Pishvaee as an SRA. Pishvaee continued working in
Dr. Payne's lab through late 2003. In 1994, UCLA
accepted Pishvaee into the university's graduate di-
vision, and, in 1999, UCLA conferred a Ph.D. in
biochemistry on Pishvaee. Effective January 1,

Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
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2000, Dr. Payne hired Pishvaee as a postdoc.
The record discloses a factual dispute over the ori-
ginally-contemplated length of Pishvaee's appoint-
ment as a postdoc. Dr. Payne's declaration in sup-
port of a motion for summary judgment stated: “I
hired [Pishvaee] as a postdoc with a three year ap-
pointment period, from January 1, 2000 through
December 31, 2002.” In his opposition to the mo-
tion, Pishvaee submitted a declaration in which he
asserted that he “was appointed by UCLA ... in
2000 and had an employment contract as a
[postdoc] with UCLA which extended until Decem-
ber 31, 2003.” Pishvaee submitted a copy of a fill-
in-the blanks “Postdoctoral Scholar Appointment
Form” from UCLA's Graduate Division which
shows a “Proposed Period of Appointment” in these
terms: “FROM: 01-01-00 TO: 12-31-2003” Dr.
Payne's declaration acknowledged that the hand-
written dates on the form indicated a four-year term
for Pishvaee's appointment, but averred that the
“2003 end date was an error, as it would have
provided for an initial four year appointment,”
which he understood was not allowed under
UCLA's policies. Regardless of the original length
of Pishvaee's appointment as a postdoc, the remain-
ing undisputed evidence in the record otherwise es-
tablishes that postdoc appointments came with a
fixed end date, although the date could be extended
at Dr. Payne's discretion. As utilized by Dr. Payne,
the postdoc position was intended to provide train-
ing. Although some stayed longer, postdocs often
found different employment after three years, tak-
ing positions in other labs, or becoming faculty
members at another university or college, or taking
research or technical support jobs in the private sec-
FN4
tor, or changing careers.
FN4. According to Pishvaee's declaration
in opposition to the motion for summary
judgment, Dr. Payne agreed that Pishvaee
“could stay as long as [he] was conducting
experiments,” and that his “appointment
would not be a regular transitional post-
doctoral appointment but rather a regular
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
long term post-doctoral appointment .”
Pishvaee's evidence does not dispute that,
at the end of a postdoc's appointment peri-
od, the decision whether to re-appoint was
a matter within Dr. Payne's discretion.
*2 While the record discloses a conflict in the evid-
ence regarding the true end date of Pishvaee's ap-
pointment as a postdoc in Dr. Payne's lab, the un-
disputed evidence in the record establishes that, on
May 21, 2003, the Dean of UCLA's Graduate Divi-
sion advised Pishvaee by letter: “... [Y]our appoint-
ment as a postdoctoral fellow has been extended
through June 30, 2003.... [¶] If you have any ques-
tions, please contact your faculty sponsor, Dr. Greg
Payne, or staff in the Graduate Division.” It is also
undisputed that Dr. Payne sent Pishvaee the follow-
ing e-mail on June 17, 2003: “Your appointment
ends at the end of this month and we should talk
about where you stand and your transition out of
the lab. How about tomorrow at 2?” In Dr. Payne's
declaration, he recalled having a conversation with
Pishvaee at about the same time. They discussed
the end of Pishvaee's appointment and some of his
future plans, including a vacation, and whether he
could return to the lab to work unpaid so he could
have access to the data at the lab in order to com-
plete a paper on which he was working. Dr. Payne
“confirmed [Pishvaee] could do so.” In his declara-
tion, Pishvaee denied any recollection that he and
Dr. Payne had such a conversation. (See footnote 4,
ante.)
The record also discloses a factual dispute over the
last day on which Pishvaee actually worked in Dr.
Payne's lab, but it is undisputed that the last
paycheck that UCLA issued to Pishvaee was for the
pay period ending June 30, 2003. According to Dr.
Payne's declaration in support of the defendant's
motion for summary judgment, he did not see
Pishvaee in the lab after the middle or late part of
July 2003. According to Pishvaee's declaration in
opposition to the motion, he worked at the lab until
the first week of September after which he left for a
pre-approved vacation to Iran. On September 4,

Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
2003, Dr. Payne sent an e-mail to Pishvaee about
the progress of some projects on which Pishvaee
had been working. The next day, Pishvaee sent an
e-mail reply stating that he was in Iran, and that he
would finish the paper on which he had been work-
ing in November or December 2003. It is undis-
puted that Pishvaee did not return to work in Dr.
Payne's lab at any time during the remainder of
2003, and it is also undisputed that Pishvaee contin-
ued receiving benefits from UCLA through October
2003, although Dr. Payne attested that the benefits
should have been ended earlier.
In January 2004, Dr. Payne sent Pishvaee an e-mail
inquiring about a project on which Pishvaee had
worked, and which Dr. Payne had directed should
be continued by another researcher. In the same e-
mail, because he had not heard from Pishvaee since
his September 2003 e-mail, Dr. Payne asked wheth-
er Pishvaee had lost interest in finishing his paper.
Pishvaee never responded. According to Pishvaee,
he did not receive Dr. Payne's January 2004 e-mail.
On a number of occasions between September 2003
and April 2004, different lab employees asked Dr.
Payne for permission to clean out Pishvaee's lab
area. On each occasion Dr. Payne said no. In spring
2004, Dr. Payne decided that a full lab clean up was
needed. In late March or early April 2004, Dr.
Payne sent Pishvaee an e-mail that he (Dr. Payne)
intended to clean up the lab; Pishvaee did not re-
spond. According to Pishvaee, he did not receive
Dr. Payne's e-mail in March 2004. Later in April
2004, Dr. Payne directed the lab employees to
clean up the entire lab, including Pishvaee's lab
bench area.
*3 Regarding the clean-up of Pishvaee's lab bench
area, Dr. Payne's declaration in support of the de-
fendants' summary judgment motion stated: “[I]n
early April 2004, I directed the lab employees to
clean up the entire lab. I asked [postdoc, John]
Olson to clear Pishvaee's bench and save anything
related to science. As I recall, the scientific material
saved was moved to a storage area around the
corner from the lab. The only item I recall Olson
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
asking me about specifically was a model made out
of plastic tubing. I knew Pishvaee spent time look-
ing at the model, but believed the model could be
put together in a half an hour or less. I had not
heard from Pishvaee in almost six months, so I told
Olson to throw it away. My decision was entirely
unrelated to Pishvaee's religion or national origin.”
Olson submitted a declaration in support of the de-
fendants' motion for summary judgment. His de-
claration stated: “I cleaned up Pishvaee's bench. I
found something made of plastic tubes with rubber
hoses that appeared to have been made with materi-
als from the lab. I did not recognize it as a model,
much less a model of Pishvaee's clathrin coats. I
showed it to Dr. Payne and he identified it as
Pishvaee's model. I asked Dr. Payne what to do
with it and he said to throw it out. In my opinion,
the model could easily be re-made, so based on Dr.
Payne's direction and my opinion, I threw it away. I
also found some cigarettes, which I threw away.
There were approximately 40 lab notebooks at his
bench that appeared to be of the kind bought by Dr.
Payne's lab. I browsed through them and if the in-
formation in the notebooks did not appear to be im-
portant for the lab's research or related to science,
e.g., if the notebook did not include results from ex-
periments but merely contained notes or data absent
context, I set them aside for recycling. I do not re-
call any of the notebooks I found at Pishvaee's
bench containing any information regarding com-
ments made to or about Pishvaee relating to his re-
ligion or national origin. [¶] ... I also found some
toys, like a Pez dispenser and Hot Wheels-type
cars, at Pishvaee's bench. I knew from discussions
with Pishvaee that he collected those types of toys.
Because of those discussions, I knew the items had
value not just as toys, but value to Pishvaee, and I
saved the toys for him. I put some things that
seemed like they might be personal property or that
he would want, like the toys, aside on a shelf for
Pishvaee. I recall finding a notebook with a yellow
cover, and because it contained approximately three
pages of writing that did not appear to relate to sci-
ence, I set it aside for Pishvaee.”

Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
Shortly after the lab clean-up in April 2004,
Pishvaee returned to Dr. Payne's lab. When offered
the items that had been saved, Pishvaee became up-
set, left, and never came back.
The Litigation History
In October 2004, Pishvaee filed an administrative
complaint with the Department of Fair Employment
and Housing (DFEH). In it, he indicated that during
the time period of 2000 through October 30, 2003,
he had been demoted, harassed, and forced to quit.
He indicated he had been denied a promotion, an
accommodation and equal pay. All of this, he
claimed, was based on his national origin, religion,
age, and physical disability. According to the su-
perior court's public website, Pishvaee filed his
current action in October 2005. The nature of
Pishvaee's original complaint is unknown; neither
of the parties' appendices on appeal includes a copy
of the pleading. In June 2006, Pishvaee filed a third
amended complaint, the operative pleading for pur-
poses of his current appeal.
*4 Pishvaee's third amended complaint alleged that
during the period of his employment Dr. Payne har-
assed him by “making disparaging, demeaning, and
otherwise offensive ethnic and religious state-
ments” about Muslims and “persons of middle-east-
ern origin.” Pishvaee alleged he was “subjected to
disparate treatment” while working in Dr. Payne's
lab, and that UCLA terminated him in October
2003. Pishvaee's third amended complaint alleged
five causes of action: (1) Discrimination against
UCLA based on religion (“Muslim”), and ethnic
and national origin (“of middle-eastern descent”),
in violation of the FEHA; (2) Harassment against
Dr. Payne and UCLA based on religion, and ethnic
and national origin, in violation of the FEHA; (3)
Retaliation against Dr. Payne and UCLA in viola-
tion of the FEHA; (4) Wrongful termination against
UCLA in violation of the public policy embodied
in the FEHA; and (5) Conversion of personal prop-
erty against Dr. Payne.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 4
In October 2007, Dr. Payne and UCLA filed a joint
summary judgment motion, or, in the alternative,
motion for summary adjudication of issues (SAI) of
Pishvaee's five causes of action. The motion was
calendared for January 8, 2008. The defendants'
motion for summary judgment was supported by
Dr. Payne's declaration and declarations from sev-
eral employees in Dr. Payne's lab, all of whom
denied that any harassment had existed in the lab
during Pishvaee's tenure. In December 2007,
Pishvaee filed his opposition. Pishvaee's opposition
was supported by his own declaration in which he
related approximately a half-dozen incidents in-
volving harassing comments by workers in Dr.
Payne's lab during the 14 years Pishvaee worked in
the lab (few, if any, were comments directly by Dr.
Payne himself). Pishvaee also stated he believed
that two incidents of discipline by Dr. Payne were
based on discriminatory motives.
On January 3, 2008, five days before the calendared
hearing on the defendants' motion for summary
judgment, Pishvaee filed a motion for leave to file a
fourth amended complaint. The proposed fourth
amended complaint would have added allegations
to Pishvaee's first cause of action for discrimina-
tion to the effect that he suffered a disability as the
result of a laboratory accident in 1996, and that
UCLA had not accommodated his disability.
On January 8 and 16, 2008, the trial court listened
to the parties' arguments on the motion for sum-
mary judgment or SAI. At the conclusion of the
hearing on January 16, 2008, the court entered a
minute order recording its decision to grant SAI of
each of Pishvaee's five causes of action, without
prejudice to the court considering Pishvaee's mo-
tion for leave to amend on February 1, 2008.
On January 23, 2008, Pishvaee filed a motion to
disqualify the trial court under Code of Civil Pro-
cedure section 170.3, subdivision (c)(1). Pishvaee's
motion argued that the trial judge could not be im-
partial because he and UCLA's counsel both had in-
volvement in a legal organization known as the
Constitutional Rights Foundation. On March 19,

Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
2008, a judicial officer assigned to hear the disqual-
ification issue denied Pishvaee's motion. Pishvaee
thereafter filed a petition for writ of mandate in our
court. On April 9, 2008, we denied Pishvaee's peti-
tion. (Pishvaee v. Superior Court (B206866).)
*5 On May 5, 2008, the trial court entered a minute
order recording its decision to deny Pishvaee's mo-
tion for leave to file a fourth amended complaint,
and to grant the defendants' motion for summary
judgment. On June 23, the court entered a formal
written order granting the motion for summary
judgment. The court's order explains its reasons for
granting summary judgment as follows:
“As to plaintiff's first cause of action for dis-
crimination based on the protected statuses of
race, national origin and religion under the
[FEHA] brought solely against [UCLA], there is
no evidence Dr. Gregory Payne ... showed racial
or religious inappropriate conduct which was
linked to the decision not to renew plaintiff's ap-
pointment. Dr. Payne knew plaintiff was Iranian
when he hired him (Undisputed Material Facts
(‘UMF’) 33, 34, 38, 39 [citation] ) and there were
no derogatory racially or religiously related com-
ments made by Dr. Payne in connection with the
decision not to renew plaintiff's appointment or
leading up to said decision. ( Smith v. Firestone
Tire and Rubber Co. (7th Cir.1989) 875 F.2d
1325, 1330.) Additionally, admissible evidence
existed of prior outbursts of plaintiff leading to
the decision not to re-appoint plaintiff. (UMFs
90-92.) Therefore, there is no admissible evid-
ence that the decision not to renew plaintiff's ap-
pointment was related to his race, national origin
or religion.
“As to plaintiff's second cause of action for
harassment under the FEHA brought against both
[UCLA] and Dr. Payne, plaintiff's claim is barred
in that none of the alleged harassing comments
were made within one year before the filing of
plaintiff's FEHA complaint, between October 12,
2003 and October 12, 2004.... For the same reas-
ons, the continuing violation doctrine does not
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 5
apply. (Id.) Additionally, plaintiff agreed that the
eleven alleged acts of harassment over a fourteen
year period delineated in defendants' motion were
the only acts of harassment and the court finds
that such alleged acts are by law neither severe
nor pervasive to constitute harassment.
“As to plaintiff's third cause of action for retali-
ation under FEHA brought against [UCLA] and
Dr. Payne, the court finds that if a complaint
made by plaintiff in April of 2002 ... could be
considered protected activity under FEHA, it oc-
curred at the earliest fourteen months before the
expiration of plaintiff's employment and therefore
the necessary causal connection did not exist....
“As to plaintiff's fourth cause of action for
wrongful termination in violation of public
policy brought solely against [UCLA], although
this cause of action may be barred by Govern-
ment Code § 815, the court does not need to
reach this issue as it finds plaintiff had an obliga-
tion to exhaust his administrative and judicial
remedies as to this common law claim and failed
to do so....
“As to plaintiff's fifth cause of action for con-
version brought solely against Dr. Payne, the
court finds that there was no actual interference
with plaintiff's right of possession because
plaintiff had been offered the opportunity to pick
up the items in question and failed to do so....
There was no admissible evidence that defendant
Payne intended to exercise dominion and control
over the items since they demonstrated through
their offer to plaintiff to retrieve the items that
they were willing to give up possession.”
*6 On June 23, 2008, the trial court entered sum-
mary judgment in favor of Dr. Payne and UCLA.
Pishvaee filed a timely notice of appeal.
DISCUSSION

Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
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(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
I. Cause of Action Two, Timeliness of the FEHA
Claims
Pishvaee contends summary judgment must be re-
versed because the trial court erred in ruling that his
causes of action under the FEHA were time-barred
as a result of his failure to file his DFEH adminis-
trative complaint within one-year after the date
upon which an unlawful employment practice oc-
curred. (See § 12940, subd. (d).) The trial court
cited the FEHA limitations period only in connec-
tion with its ruling on Pishvaee's second cause of
action for harassment. Accordingly, we consider
Pishvaee's first argument to advance the discrete
contention that the trial court incorrectly ruled that
his cause of action for harassment was time-barred.
We find the trial court ruled appropriately.
Having examined the evidence in the record in
Pishvaee's favor as required in the context of sum-
mary judgment motion (see, e.g., Wilson v. 21st
Century Ins. Co. (2007) 42 Cal.4th 713, 717), we
see evidence-all of which was presented through
Pishvaee's own personal recollections-showing a
number of alleged instances of harassing comments
or actions, based on ethnicity or religion, directed
at Pishvaee during his time working in Dr. Payne's
lab. For purposes of the summary judgment motion,
Pishvaee's evidence must be accepted as true.
However, Pishvaee still lacks a viable cause of ac-
tion for harassment. Pishvaee's own declaration in
opposition to the summary judgment motion in-
cluded his statement that he voluntarily absented
himself from Dr. Payne's lab on a vacation during
“the first week of September [2003].” There is no
dispute in the evidence that Pishvaee never returned
to work at Dr. Payne's lab after September 2003. In
short, any harassment which occurred within Dr.
Payne's lab at UCLA necessarily occurred before
September 2003. Pishvaee did not file his DFEH
administrative complaint until October 2004, more
than one year later. Accordingly, the trial court cor-
rectly ruled that Pishvaee's cause of action for har-
assment was time-barred.
To avoid this conclusion, Pishvaee argues his cause
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
of action for harassment is timely under the
“continuing violation doctrine.” Pishvaee is mis-
taken. Under the continuing violation doctrine, the
limitations period prescribed by the FEHA does not
begin to run when an employee first believes his or
her FEHA rights may have been violated, but when
a continuing wrongful course of conduct ends or
when the employee is on notice that any more ef-
forts to end the unlawful conduct will be in vain. (
Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798,
823.) This doctrine does not apply in Pishvaee's
current case because any harassment he suffered in
the workplace ended, at the latest, in September
2003.
Pishvaee's argument seems to suggest that if an em-
ployee suffers a continuing course of harassment in
the workplace then he or she is given an open-
ended period of time to file a DFEH administrative
complaint. In other words, the limitations period
under FEHA never commences when an employee
is subjected to continuing unlawful conduct in the
workplace, regardless of when the conduct stops.
That is not how the continuing violation doctrine
works. Where, as in Pishvaee's current case, there is
a date certain beyond which harassment in the
workplace could not possibly have occurred, the
continuing violation doctrine will not apply to ex-
tend the beginning of the statute of limitations bey-
ond that certain end date.
II. The Trial Court's Ruling on UCLA's Demur-
rer is Not Relevant for Purposes of Examining
the Court's Ruling of the Motion for Summary
Judgment
*7 Pishvaee's next argument, in its entirety, reads
as follows: “In denying [UCLA's] demurrer to the
fourth cause of action ... for wrongful termination,
asserting the same allegation [sic ] as in the sum-
mary judgment motion, the court previously held
that this is not a common law action but a cause of
action predicated on Government Code Section
12940 [citation]. [¶] The fourth cause of action is
not a common law action brought under FEHA but

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(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
one brought under statute.” We summarily reject
this argument as a ground for reversal. To the ex-
tent Pishvaee appears to suggest that a trial court's
decision to overrule a defendant's demurrer some-
how bars the same defendant from prevailing on a
subsequent summary judgment motion, he offers no
legal authority in support of such a proposition. A
demurrer challenges the sufficiency of a pleading; a
motion for summary judgment is evidence-based. A
trial court's decision to overrule a challenge to a
pleading does not preclude the possibility of pre-
vailing on an evidence-based summary judgment
motion.
III. Cause of Action Four, Exhaustion of Admin-
istrative Remedies
Pishvaee contends summary judgment must be re-
versed because the trial court erred in ruling that his
fourth cause of action for wrongful termination in
violation of the public policy stated in the FEHA
was barred by his failure to exhaust his administrat-
ive remedies. Pishvaee argues: “[W]here a claim is
subject to review by two separate agencies the
plaintiff need not exhaust his or her remedies be-
fore a local agency if he has exhausted his remedies
under state law prior to bringing suit. Schifando v.
City of Los Angeles (2003) 31 Cal.4th 1074, 1089
.[¶] The employee need not exhaust the employer's
internal grievance procedure in order to file suit un-
der the FEHA. The employee need only exhaust the
administrative remedy under these statutes by ob-
taining the appropriate right-to-sue letter from
[DFEH]. Schifando v. City of Los Angeles, supra, at
1080.” Pishvaee's argument does not persuade us
that the trial court's decision to grant the defend-
ant's summary judgment motion must be reversed.
UCLA's motion for summary judgment cited
Palmer v. Regents of University of California
(2003) 107 Cal.App.4th 899 (Palmer ). In granting
UCLA's motion, the trial court cited Palmer. The
issue, therefore, is whether the trial court properly
FN5
applied Palmer.
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 7
FN5. Palmer involved an action by a
former UCLA employee for wrongful ter-
mination in violation of the public policy
to protect “whistleblowing.” (See
Lab.Code, § 1102.5, subd. (b).) The trial
court granted UCLA's motion for summary
judgment, ruling that the plaintiff had
failed to follow the University of Califor-
nia's grievance procedure. Division Seven
of our court affirmed, holding that Govern-
ment Code section 8547.10 prescribes that
no whistleblowing action against the uni-
versity may be brought unless the plaintiff
has followed the statutory internal griev-
ance procedures.
Pishvaee's arguments on appeal fail to show error
because Pishvaee has not taken the effort to explain
why Palmer is inapplicable. Pishvaee's argument
does not even acknowledge the existence of
Palmer; as the case is not cited in his brief. But
even assuming that Pishvaee had persuasively ar-
gued that Palmer is not applicable, and that Schi-
fando v. City of Los Angeles, supra, 31 Cal.4th
1074, is the more applicable law, we still would not
reverse. UCLA's motion for summary judgment
also argued that Pishvaee's wrongful termination
claim (as well as all of his other claims) failed on
the merits in that there was no evidence supporting
a finding that Dr. Payne's decision not to reappoint
Pishvaee was based on an unlawful, discriminatory
reason. As we discuss in the next section in ad-
dressing Pishvaee's cause of action for a discrimin-
atory termination directly under the FEHA, the un-
disputed evidence supports the trial court's decision
to grant the motion for summary judgment in favor
of UCLA. Pishvaee's alternative pleading theory
that UCLA wrongfully terminated him in violation
of the public policy adds nothing to Pishvaee's pos-
ition. Absent the existence of evidence creating a
triable issue of fact on the allegation that Dr.
Payne's decision not to reappoint Pishvaee was mo-
tivated by discrimination, we see no reason to re-
verse the trial court's decision to grant summary
judgment in favor of UCLA.

Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
IV. Cause of Action One, Discrimination Under
the FEHA
*8 Pishvaee contends the trial court's decision to
grant UCLA's summary judgment motion must be
reversed because he presented evidence creating tri-
able issues of material fact regarding his first cause
of action for discrimination under the FEHA. We
disagree.
Pishvaee's evidence in opposition to UCLA's mo-
tion for summary judgment-which we accept as
true-showed that UCLA hired him as a post-doc on
January 1, 2000, and that his appointment ended on
December 31, 2003. His evidence further estab-
lished that he voluntarily absented himself from Dr.
Payne's lab on or about September 1, 2003, and that
he did not return. In short, Pishvaee's appointment
expired while he was voluntarily away from the lab.
Accordingly, Pishvaee's case has nothing to do with
a “termination” of his employment because his em-
ployment expired by its own terms. Indeed, appel-
lant's counsel admitted at oral argument that
Pishvaee had no contract for employment with
UCLA after December 2003. Pishvaee's case neces-
sarily rests on his claim that UCLA, acting through
Dr. Payne, violated the FEHA by declining to ap-
point him to a new term as post-doc. The trial court
plainly understood this context. When granting
UCLA's motion for summary judgment, the trial
court found that there was “no admissible evidence
that the decision not to renew plaintiff's appoint-
ment was related to his race, national origin or reli-
gion.” (Emphasis added.)
Assuming without deciding that Pishvaee had a leg-
ally protected interest in being appointed to another
term as a post-doc at UCLA (cf. Sada v. Robert F.
Kennedy Medical Center (1997) 56 Cal.App.4th
138 [an applicant is protected under the FEHA to
the same extent as an employee] ), the issue on ap-
peal is whether Pishvaee presented evidence in the
trial court which would support a finding that
UCLA's decision not to reappoint him was based on
his race, national origin or religion. Pishvaee's
claim on appeal that he did present evidence creat-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 8
ing a triable issue of fact fails because he has not
offered us even a single reference to an item of
evidence in the record which would support an in-
ference that Dr. Payne's decision not to reappoint
Pishvaee was based on a discriminatory reason.
“ ‘ “[The FEHA] addresses discrimination.”...
[It does not] require the employer to have good
cause for its decisions. The employer may fire an
employee for a good reason, a bad reason, a reas-
on based on erroneous facts, or for no reason at
all, as long as its [job] action is not for a discrim-
inatory reason.... “While an employer's judgment
or course of action may seem poor or erroneous
to outsiders, the relevant question is ... whether
the given reason was a pretext for illegal dis-
crimination. The employer's stated legitimate
reason ... does not have to be a reason that the
judge or jurors would act on or approve.” ‘ “ (
Arteaga v. Brinks's, Inc. (2008) 163 Cal.App.4th
327, 344.)
The evidence submitted by UCLA in support of its
motion for summary judgment showed that Dr.
Payne simply considered Pishvaee's appointment as
a post-doc to have come to an end in June 2003,
and that shortly thereafter Pishvaee voluntarily left
the lab. While Pishvaee's evidence showed a dis-
pute over the true end date, it is undisputed that he
did leave the lab. Further, that his appointment ex-
pired, even under his own evidence, while he was
away from the lab. The disputes in the evidence
created by Pishvaee's showing are not material for
purposes of his discrimination claim. Pishvaee has
not cited us to any evidence in the record which
would support his fundamental claim that the end
of his employment at UCLA was based on race, na-
tional origin or religion. The reason Pishvaee no
longer works at UCLA is because the period of his
appointment expired, not because he was the victim
of discrimination.
*9 To the extent Pishvaee's third amended com-
plaint may allege that UCLA discriminated against
him in connection with pay and promotions, any
such claims are time-barred. The undisputed evid-

Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
ence establishes that UCLA last issued a paycheck
to Pishvaee for the pay period ending June 30,
2003. Pishvaee's evidence shows that he did not
work in Dr. Payne's lab after early September 2003.
To the extent any unlawful conduct occurred re-
garding pay or promotions, it must have occurred
more than one year before Pishvaee filed his DFEH
administrative complaint. (§ 12940, subd. (d).)
V. Cause of Action Two, Harassment Under the
FEHA
For the reasons explained in section I of this opin-
ion, ante, we reject Pishvaee's contention that sum-
mary judgment must be reversed because he
presented evidence to create triable issues of mater-
ial fact on his claim for harassment under the
FEHA. As we explained above, the undisputed
evidence in the record shows that Pishvaee's harass-
ment claims are time-barred. (§ 12940, subd. (d).)
VI. Cause of Action Three, Retaliation Under
the FEHA
Pishvaee contends summary judgment must be re-
versed because he presented evidence creating tri-
able issues of material fact on his claim for retali-
ation under the FEHA. We disagree.
First, as explained above, the undisputed material
evidence shows that Pishvaee's employment with
UCLA ended because the term of his appointment
expired. The issue, therefore, is whether UCLA de-
clined to reappoint Pishvaee based on race, national
origin or religion. As with his argument regarding
discrimination, Pishvaee has failed to point us to
any evidence which would support a finding that
the decision not to reappointment was made in re-
taliation for any protected objections voiced by
Pishvaee during his time working in Dr. Payne's
lab. Pishvaee's argument consists entirely of cita-
tions to legal authorities controlling the area of re-
taliation. The problem, however, is not with the law
governing Pishvaee's case, but with his evidentiary
showing. Absent a showing in our court that the tri-
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 9
al court incorrectly found no triable issue of materi-
al facts, we will not reverse the trial court's de-
cision.
VII. Cause of Action Four, Wrongful Termina-
tion in Violation of Public Policy
Pishvaee contends summary judgment must be re-
versed because he presented evidence creating tri-
able issues of material fact on his claim for wrong-
ful termination. The is the totality of Pishvaee's ar-
gument: “Summary adjudication of the fourth cause
of action for termination in violation of public
policy would be improper because the same factual
and legal basis of plaintiff's statutory causes of ac-
tion under the FEHA supports the cause of action
under the seminal decision in Tamney [sic] v. At-
lantic Richfield [Co.] (1980) 27 Cal.3d 167[.] If the
court reverses the trial court on any of the first
three causes of action of the third amended com-
plaint it should deny the motion on this ground as
well.” Inasmuch as we have found that Pishvaee
failed to demonstrate any error with regard to his
FEHA-based claims, we summarily reject his chal-
lenge to the trial court's ruling on his wrongful ter-
mination claim.
VIII. Cause of Action Five, Conversion
*10 Pishvaee contends summary judgment must be
reversed because his evidence was sufficient to
show the existence of triable issues of material fact
on his cause of action for conversion against Dr.
Payne. We disagree.
“The tort of conversion exists if there is an exertion
of wrongful dominion over the personal property of
another in denial of or inconsistent with his rights
therein.” ( George v. Bekins Van & Storage Co.
(1949) 33 Cal.2d 834, 837, emphasis added.) Negli-
gence is not dominion. When redelivery of personal
property is impossible because the goods have been
lost or destroyed merely as the result of negligence,
there is no conversion. (Id. at p. 838.) In short,
there is no conversion where a person makes no

Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))
personal use of another's property or does not claim
an ownership or possessory interest in the property.
Whatever other claim may or may not exist, it is not
a claim for conversion.
Pishvaee's argument on appeal does not include any
reference to evidence in the record which would
support a finding that Dr. Payne exercised any
dominion over any personal property belonging to
Pishvaee. In the absence a showing on appeal that
evidence of Dr. Payne's use of, or claim to, any
property exists, we decline to reverse the trial
court's ruling on Pishvaee's conversion claim.
IX. Leave to Amend a Fourth Amended Com-
plaint
Pishvaee contends summary judgment must be re-
versed because the trial court abused its discretion
by denying his motion for leave to file a fourth
amended complaint. We disagree.
A trial court abuses its discretion when it renders a
decision which is arbitrary, irrational or beyond the
bounds of reason. ( Blackman v. Burrows (1987)
193 Cal.App.3d 889, 893.) Pishvaee filed his mo-
tion for leave to file a fourth amended complaint
after UCLA and Dr. Payne had already filed their
motion for summary judgment. Pishvaee's motion
stated that the reason for the delayed request to file
a fourth amended complaint was that it was not un-
til he had received the defendants' motion for sum-
mary judgment that he realized he had a disability
claim. The trial court's decision not to re-open the
pleading stage of Pishvaee's case was reasonable
under these circumstances. First, Pishvaee filed his
motion for leave to amend more than two years
after litigation began, and after being faced with a
summary judgment motion. In addition, he waited
months after the summary judgment motion to file
his motion for leave to amend. Second, Pishvaee's
proffered reason about delayed knowledge of a po-
tential disability claim was, at best, disingenuous.
In his DFEH administrative complaint which he
filed in October 2004, it expressly stated that he
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 10
had been the victim of adverse employment actions
based on his “physical disability.” In other words,
Pishvaee knew about his purportedly “recently dis-
covered” potential claim from before he even com-
menced his current case.
X. UCLA's Grievance Procedures
*11 We also reject Pishvaee's contention that sum-
mary judgment must be reversed because the trial
court abused its discretion by denying his request
for judicial notice that UCLA provides a grievance
procedure. Regardless of whether Pishvaee is or is
not correct that the evidence of such grievance pro-
cedures was properly authenticated, he does not ex-
plain how the trial court's evidentiary ruling preju-
diced his opposition to the motion for summary
judgment. Given Pishvaee's failure to address pre-
judice, we will not reverse. (Cal. Const., art. VI, §
13.)
XI. Disqualification
We find Pishvaee's contention that summary judg-
ment must be reversed because the trial court
should have been disqualified based upon the show-
ing in his motion pursuant to Code of Civil Proced-
ure section 170.3, subdivision (c)(1) lacking in
merit. “The determination of the question of the
disqualification of a judge is not an appealable or-
der and may be reviewed only by a writ of mandate
from the appropriate court of appeal sought only by
the parties to the proceeding.” (Code Civ. Proc., §
170.3, subd. (d).) In Pishvaee's current case, he
challenged the order denying his motion to disqual-
ify Judge Kronstadt by a petition for writ of man-
date in our court. We denied Pishvaee's petition.
The Legislature has determined that the exclusive
path to challenge a decision denying disqualifica-
tion of a judge is a petition for writ of mandate. We
are not free to second-guess the Legislature's de-
termination. The decision to deny disqualification
of Judge Kronstadt may not be reviewed on appeal.
 Page 11
Not Reported in Cal.Rptr.3d, 2010 WL 3388403 (Cal.App. 2 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
(Cite as: 2010 WL 3388403 (Cal.App. 2 Dist.))

DISPOSITION

The judgment is affirmed. Respondents to recover

their costs on appeal.

We concur: RUBIN and GRIMES, JJ.

Cal.App. 2 Dist.,2010.
Pishvaee v. Regents of University of California
Not Reported in Cal.Rptr.3d, 2010 WL 3388403
(Cal.App. 2 Dist.)

END OF DOCUMENT

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.