Case Number: BC660550 Hearing Date: July 07, 2020 Dept: 31
Background
On May 8, 2017, Plaintiff Ian Maier filed the instant action against Defendants City of Torrance (the “City”); Torrance Police Department; Hector Bermudez; and Does 1 through 100. On November 25, 2019, Plaintiff filed the Second Amended Complaint (“SAC”). The SAC asserts causes of action for:
- Discrimination in Violation of FEHA (Disability) (Gov’t Code §§ 12940 et seq.);
- Retaliation in Violation of FEHA (Gov’t Code §§ 12940 et seq.);
- Harassment in Violation of FEHA (Gov’t Code §§ 12940 et seq.);
- Failure to Prevent Unlawful Discrimination (Gov’t Code §§ 12940 et seq.);
- Violation of Constitutional Right to Privacy (Const., Art. 1, § 1); and
- Violation of Public Safety Officers Procedural Bill (Gov’t Code §§ 330 et seq.).
On December 26, 2019, Plaintiff dismissed with prejudice the cause of action for Violation of Constitutional Right to Privacy and the cause of action for Violation of Public Safety Officers Procedural Bill. On January 6, 2020, Plaintiff dismissed with prejudice the cause of action for Harassment in Violation of FEHA. On April 10, 2020, Plaintiff dismissed all causes of action except for the cause of action for Retaliation in Violation of FEHA. On April 30, 2020, Plaintiff dismissed with prejudice Defendant Hector Bermudez, effectively leaving only the cause of action for Retaliation in Violation of FEHA against the City and Torrance Police Department.
The City demurs to the remaining cause of action for Retaliation in Violation of FEHA.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)
Request for Judicial Notice
The court may take judicial notice of “[r]egulations and legislative enactments issued by or under the authority of the United States or any public entity of the United States,” “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (b), (c), (d), and (h).)
The City requests that the Court take judicial notice of the following documents:
- Judgment regarding the Court’s denial of Petition for Writ of Mandate (LASC Case No. BS173683, October 9, 2019);
- City of Torrance Civil Service Commission’s Finding of Facts, Conclusions of Law and Orders re Termination of Ian Maier (October 23, 2017);
- Letter from Civil Service Manager to Parties, attaching relevant Municipal Code provisions and Civil Service Commission Procedural Rules for Disciplinary Hearings (November 9, 2016);
- Order of the City Council of the City of Torrance re Termination of Ian Maier (February 6, 2018); and
- Notice of Entry of Judgment (LASC Case No. BS173683, October 9, 2019).
The request is GRANTED.
Discussion
Retaliation in Violation of FEHA (Gov’t Code §§ 12940 et seq.)
Collateral Estoppel – Exhaustion of Judicial Remedies
“The doctrine of res judicata or claim preclusion dictates that in ordinary circumstances a final judgment on the merits prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. [Citation.] The doctrine of collateral estoppel or issue preclusion prevents “the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action.” [Citation.] “Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action.” [Citation.]” (Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 844.)
“The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” (People v. Barragan (2004) 32 Cal.4th 236, 253.)
“To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have “consistently applied the ‘primary rights’ theory.” [Citation.]” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) “The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” (Id. at 798.) “‘[T]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ [Citations.]” Thus, under the primary rights theory, the determinative factor is the harm suffered.” (Id.)
“Issue preclusion is not limited to barring relitigation of court findings. It also “bars the relitigating of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity.” [Citation.]” (Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481.) Known as the requirement of exhaustion of judicial remedies, a plaintiff that has not prevailed at the agency level “must first succeed in overturning the quasi-judicial action [by means of an administrative mandate proceeding in superior court] before pursuing her . . . claim [in court] against defendants.” [Citation.] (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.) “Generally speaking, if a complainant fails to overturn an adverse administrative decision by writ of mandate, ‘and if the administrative proceeding possessed the requisite judicial character [citation], the administrative decision is binding in a later civil action brought in superior court.” (Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 846.)
Adverse administrative decisions will preclude subsequent civil suits involving the same primary right even if new legal theories are asserted in the civil action that were not raised at the administrative proceeding, so long as the same primary right is involved. (Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896, 904 (disapproved on other grounds by Johnson v. City of Loma Linda (2000) 24 Cal.4th 61.) This is because “[r]es judicata encompasses “matters which were raised or could have been raised, on matters litigated or litigable” in the prior action. [Citation.] “The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.” [Citation] “If the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.” [Citation.]” (Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 844.)
“[If employees] voluntarily choose to first obtain relief by means of the employer’s internal procedures, they must fully exhaust that avenue of relief. This entails not merely exhausting the administrative remedy itself, but also the judicial remedies—petitioning for an administrative writ of mandate and appeal from any order on that petition—that are the exclusive means of reviewing any administrative decision. [Citation.] Johnson makes clear that failure to set aside an agency’s quasi-judicial decision will render that decision final and binding on a plaintiff’s later FEHA claims. [Citation.]” (Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 879–880.)
The City first demurs to the remaining cause of action for retaliation in violation of FEHA arguing that Plaintiff is collaterally estopped from relying on allegations related to his termination to support his FEHA claims. The City asserts that Plaintiff chose to pursue his administrative remedies by appealing his termination to the Commission, where he was represented and received a full quasi-judicial evidentiary hearing over the course of twelve (12) days. (RJN, Exh. 1-4.) The City contends that after the Commission sustained his termination, Plaintiff unsuccessfully appealed his termination to the Council and then filed a Writ Petition with the Superior Court, which was denied. (RJN, Exh. 1, 5.) The City argues that Plaintiff did not, and now cannot, appeal his denial. The City asserts that having failed to exhaust his judicial remedies by appealing the Court’s denial of his writ petition, Plaintiff is bound by the collateral estoppel effect of the administrative decision.
In opposition, Plaintiff argues that the Commission hearing and subsequent writ have no preclusive effect on Plaintiff’s retaliation claim because his retaliation claim was not part of the hearing or writ. Plaintiff asserts that there is no evidence of any substantial overlap between the evidence or argument to be advanced in Plaintiff’s retaliation claim and that advanced in the commission evidence. Plaintiff contends that further, the retaliation claim does not involve the same rule of law advanced in the Commission hearings.
Plaintiff argues that there has been no ruling by any administrative body on the merits of Plaintiff’s retaliation claim. Plaintiff asserts that there therefore can be no binding effect of this claim from Plaintiff’s loss of other administrative remedies.
In reply, the City argues that Plaintiff cannot challenge the application of collateral estoppel. The City asserts that the case authority addressing collateral estoppel that Plaintiff relies on in his opposition undermines his position instead of supporting it. The City contends that Plaintiff misconstrues case authority addressing the “identical issue” prong. The City argues that the absence of an administrative decision specifically addressing Plaintiff’s retaliation theory is irrelevant, given the focus on the legitimacy of his termination and the surrounding events in both his administrative proceedings and the SAC.
The Court finds that a review of the judicially noticed documents indicates that Plaintiff’s remaining cause of action for retaliation in violation of FEHA is barred by the doctrine of collateral estoppel. Contrary to Plaintiff’s arguments otherwise, a ruling by an administrative or judicial body on the merits of Plaintiff’s retaliation claim is not required in order for the doctrine of collateral estoppel to apply. This is because “[t]he doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.” (Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 844.) Here, the SAC alleges that “Plaintiff was subjected to retaliation when Defendants instituted baseless [internal affairs allegations] and recommended his termination.” (SAC ¶ 44.). The judicially noticed documents make clear that Plaintiff litigated or, at the very least, had an opportunity to litigate, the propriety of his termination and the events leading up to his termination, including the internal affairs allegations against him. (RJN, Exh. 1-2.) The primary right in the writ proceedings and in this action is the termination; though the legal theories might differ the primary harm sought to be addressed is the same.
Moreover, as noted above, once an employee voluntarily chooses to first obtain relief by the employer’s internal processes, the employee must fully exhaust all administrative and judicial remedies, including seeking to set aside an order denying a writ of mandate. The judicially noticed documents here establish that Plaintiff appealed his termination to the City’s Civil Service Commission and then to the City Council, a Writ of Mandate filed by Plaintiff was denied by this Court, and that judgment was entered against Plaintiff on the Writ Petition on October 9, 2019, triggering the 60-day deadline to file a notice of appeal. (RJN, Exh. 1-5.) Plaintiff does not argue that any such appeal was filed and cannot amend the SAC to allege such a fact. Plaintiff thus cannot allege the exhaustion of judicial remedies and therefore cannot state a cause of action for retaliation in violation of FEHA.
Based on the foregoing, the City’s demurrer to the remaining cause of action for retaliation in violation of FEHA is SUSTAINED without leave to amend.
Conclusion
Defendant’s demurrer to the SAC is SUSTAINED without leave to amend.
The parties are strongly encouraged to attend all scheduled hearings by telephone or CourtCall. All social distancing protocols will be observed at the Courthouse and in the courtrooms.
Moving party to give notice.