RUBY CORNEJO, Plаintiff and Appellant, v. WILL LIGHTBOURNE, as Director, etc., et al., Defendants and Respondents.
No. C070704
Third Dist.
Oct. 22, 2013.
Lawrence J. King for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Susan E. Slager and Austin Cattermole, Deputy Attorneys General, for Defendants and Respondents.
OPINION
BUTZ, J.—Plaintiff Ruby Cornejo filed this action for damages for violations of the California Whistleblower Protection Act (WPA) (
Analogizing to the California Fair Employment and Housing Act (FEHA),4 plaintiff contends the WPA is not subject to the Claims Act becausе it has a comprehensive administrative procedure that satisfies the purposes of the presentation procedure in the Claims Act. We agree. We also conclude that the alternative grounds for the demurrer are without merit. We will therefore reverse the judgment and remand with directions to overrule the demurrer.
The substance of the allegations underlying plaintiff‘s claims against the Department are not at issue on appeal. We therеfore focus on the first amended complaint‘s allegations involving the procedural background and matters in the State Personnel Board (Board) administrative proceedings of which the trial court took judicial notice at the Department‘s request.
Plaintiff initially filed a civil action against the Department in 2000, in which she asserted racial and handicap discrimination and retaliation. In June 2001, the parties executed a settlement agreement in which plaintiff released all claims “arising from or in any reasonable way related to the disputes and controversies” at issue in the action in exchange for various forms of consideration from the Department.
Plaintiff filed administrative complaints with the Board in 2004, 2005, and 2006 alleging retaliation in violation of the WPA. (
In a lengthy decision in November 2008, the hearing officer granted a motion to dismiss about half of the allegations in the first two administrative complaints. The heаring officer set the remainder for a further evidentiary hearing.
In December 2008, plaintiff entered into a settlement agreement in connection with a 2007 action she had filed against the Department, alleging disability discrimination, retaliation, and harassment. The settlement agreement provided: “By this Agreement, the Parties intend to settle the rights and claims of the Parties from the [2007] Action and any related actions filed in state or federal courts or with administrative agenсies. This release does not apply to and shall [not] have [any] effect on the matters currently pending before the [Board]” in the three administrative proceedings. “The Parties agree further that the settlement herein shall [not] have [any] effect upon the prosecution of [those complaints], in spite of certain factual allegations in this Action being the same or similar to factual allegations pl[ed] in . . . [that]
Plaintiff filed a fourth administrative complaint in July 2009 (and an amended version of it in Sept. 2009). The Board‘s executive officer dismissed the complaint in September 2009 because it did not describe any specific retaliatory acts within the 12 months preceding its filing. (
At the same time, plaintiff requested that the Board also close her three other pending proceedings, because the decision in State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963 [89 Cal.Rptr.3d 576, 201 P.3d 457] (Chiropractic Examiners) had obviated her need to pursue administrative remedies beyond the executive officer‘s issuance of initial findings before pursuing independent judicial relief. The Board granted her request.
DISCUSSION
I. A WPA Action Is Not Subject to the Claims Act Presentation Procedure
Ordinarily, filing a claim with a public entity pursuant to the Claims Act is a jurisdictional element of any cause of action for damages against the public entity (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454 [115 Cal.Rptr. 797, 525 P.2d 701]; Snipes v. City of Bakersfield (1983) 145 Cal.App.3d 861, 865 [193 Cal.Rptr. 760] (Snipes)) that must be satisfied in addition to the exhaustion of any administrative remedies (Richards v. Department of Alcoholic Beverage Control (2006) 139 Cal.App.4th 304, 315 [42 Cal.Rptr.3d 782] [mere filing of claim does not satisfy need to exhaust remedy by applying for license before bringing suit]; see Ortiz v. Lopez (E.D.Cal. 2010) 688 F.Supp.2d 1072, 1079–1080; Creighton v. City of Livingston (E.D.Cal. 2009) 628 F.Supp.2d 1199, 1221–1222 [both holding that allegation of compliance with Claims Act insufficient without allegation of exhaustion of administrative remedy as well]). There are certain types of claims in
Other than a vintage decision of this court involving a somewhat obscure flood repair law (County of Mendocino v. State of California (1971) 22 Cal.App.3d 90, 94–95 [98 Cal.Rptr. 904] [the Emergency Flood Relief Law is a “complete statutory scheme” for determining state reimbursement of claims for flood disaster repairs; thus requiring resort to Claims Act presentation process would be completely duplicative]), the only claims to date found exempt from the presentation requirement (for reasons other than federal supremacy) are those arising under the FEHA. (Garcia v. Los Angeles Unified School Dist. (1985) 173 Cal.App.3d 701, 711–712 [219 Cal.Rptr. 544] [FEHA promotes early investigation with opportunities for settlement, so equivalent of presentation requirement]; Snipes, supra, 145 Cal.App.3d at pp. 867–869 [FEHA promotes same objects as Claims Act: It gives notice of charges to public agency, early opportunity to investigate, and promotes early settlement short of court litigation in an administrative forum].) Plaintiff has argued both in the trial court and here that the WPA is at least as equivalent to the purposes and procedures of the Claims Act as the FEHA, if not more. The trial court disagreed; it relied on the lack of any precedent other than in the FEHA context, and contrasted the WPA with the FEHA only with respect to the lack of any enforcement authority in the WPA itself. We must then briefly sketch the scheme of the WPA.
Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382 [79 Cal.Rptr.2d 791] provides a précis of the WPA. The act prohibits improper governmental activities, which include interference with or retaliation for reporting such activities. The WPA is under the administration of the California State Auditor (hereafter State Auditor). Upon receiving an allegation, the State Auditor makes an investigation (in the course of which the whistleblower‘s identity must remain confidential unless disclosure has been authorized). The State Auditor is authorized to keep any information received during the investigation confidential as wеll. The State Auditor makes a report on the results of the investigation to the head of the affected agency (and, if
The Board regulations prescribe a format for the content of the written complaint of retaliation. (Cal. Code Regs., tit. 2, § 67.2.)8 Within 10 business days of its filing, the Board‘s executive officer must either dismiss a complaint for jurisdictional or filing defects, refer it for investigаtion, or schedule an informal hearing before a hearing officer. (Cal. Code Regs., tit. 2, § 67.3, subds. (a), (c).) In either of the latter options, investigators (or hearing officers) have the authority to question witnesses, inspect documents, visit facilities, administer oaths, and compel the attendance of witnesses; the executive officer must issue findings on the result of any investigation, and has the options of adopting, modifying, or rejecting a hearing officer‘s findings (with the further options of either remanding for further proceedings or issuing independent findings on the existing record).9 (Cal. Code Regs., tit. 2, §§ 67.4, 67.5.) The notice of findings, if adverse to the complainant, are deemed the final findings of the Board and inform the complainant that
As this summary shows,10 when an employee files an administrаtive complaint with the Board, the WPA provides a public agency with early notice of the existence of the claimant, the facts underlying the claim, the theories of the claim, and the amount of damages sought (including compensatory damages, if any). The WPA further provides for early investigation of the merits of a claim (which exceeds the degree of evaluation made of a FEHA claim before the issuance of a right-to-sue letter), and the Board has the pоwer to enforce the provisions of the WPA (a point the trial court disregarded). Moreover, as noted in Chiropractic Examiners, supra, 45 Cal.4th at pages 976 to 977, the requirement of initial resort to the WPA‘s administrative remedy is “useful as a means of promoting settlement.” (Accord, Bjorndal v. Superior Court (2012) 211 Cal.App.4th 1100, 1110 [150 Cal.Rptr.3d 405] (Bjorndal) [WPA‘s administrative procedure is “favored because, in addition to providing notice to the affected agency, it allows the agency to evaluate its potential liability and resolve the matter amicably” and thus avoid need for аnd expense of litigation].) Consequently, we conclude that Board proceedings under the WPA fulfill every function of the presentation procedure of the Claims Act, allowing us to infer an exception to the Claims Act for this functionally equivalent claims process. The Department‘s conclusory assertion to the contrary is unavailing.
It is therefore immaterial, as the Department argues, that the State Auditor‘s investigations are deficient as compared with the Claims Act presentation procedure. Any plaintiff who wants to bring a civil action against a public entity of necessity must invoke the Board‘s WPA procedures. It is also immaterial that the provision authorizing the Board procedures is located in the State Civil Service Act (
II. Other Grounds for Demurrer
The Department also renews the alternate grounds for its demurrer. (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 966–967 (Fuller) [must determine if any other ground asserted in demurrer will support ruling, and may even consider new theory on аppeal].)
A. Effect of Settlement Agreements
The Department contends plaintiff incorporates conduct in the present action that underlies the 2000 action (citing her allegations in several paragraphs involving protected conduct from 1999 to 2002). As plaintiff pointed out in the trial court, she “does not, in this suit, make any claim preceding June 11, 2001,” because she alleged the course of retaliation began in 2002. Furthermore, the Department does not provide any authority under whiсh a demurrer may be sustained as to part of a cause of action. (Fuller, supra, 216 Cal.App.4th at p. 968, fn. 8.) This accordingly cannot be a basis on which to sustain the demurrer.
The Department also contends the December 2008 settlement agreement excepted only the WPA administrative proceedings and not any independent
B. The Limitations Period Has Not Expired
Citing
The Department, however, disregards the express language of
C. Untimely 2009 Administrative Complaint
The timely filing of an administrative complaint is a prerequisite to a judicial action under the WPA. (Bjorndal, supra, 211 Cal.App.4th at pp. 1112–1113 [must comply with 12-month limitations period for filing administrative complaint in order to bring judicial action under WPA; equitable tolling cannot apply]; cf. Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th 940, 945 [65 Cal.Rptr. 3d 145] [FEHA; equitable tolling can apply].) Pointing to the findings of the executive officer in connection with plaintiff‘s 2009 administrative complaint, the Department contends plaintiff cannot premise liability on any conduct postdating her other three complaints because she did not timely file any administrative complaint. Plaintiff asserts that the most recent of the acts of retaliation was within one year of her 2009 administrative complaint and therefore it was timely (presumably under the doctrine of continuing violation).
D. Exhaustion and Issue Preclusion
Chiropractic Examiners, supra, 45 Cal.4th 963, as noted above, determined as a matter of legislative intent in
The Department points out that the executive officer issued her findings in 2004 that further evidentiary hearings were necessary, and plaintiff thereafter “voluntarily participate[d] in an evidentiary hearing.” It contends this distinguishes Chiropractic Examiners, because a plaintiff should not be allowed to abandon ongoing administrative proceedings without exhausting them and proceed de novo in superior court. This is the classic distinction without a difference. The further participation in administrative proceedings does not have any bearing on the Supreme Court‘s rationale, which is premised on the absence of any legislative intent that a plaintiff exhaust the administrative remedy beyond the issuance of findings even if the 2002 Regulations contemplated further administrative proceedings. (Chiropractic Examiners, supra, 45 Cal.4th at p. 972 [rejecting argument that 2002 Regulations could add any additional steps to the administrative process].) Once the Supreme Court made this clear in 2009, plaintiff was entitled to abandon the unnecessary steps of the administrative process. Similarly, the Department‘s argument that this distinction gives preclusive effect to the November 2008 decision is equally unavailing, because it does not affect the rationale premised on the independent nature of the judicial action and the absence in
The judgment of dismissal is reversed with direction to enter a new order overruling the Department‘s demurrer. Plaintiff shall recover costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
Blease, Acting P. J., and Hull, J., concurred.