Glover v. City of Santa Barbara ( 2015 )

Filed 5/21/15 Glover v. City of Santa Barbara
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ANTHONY GLOVER, 2d Civil No. B257114
(Super. Ct. No. 1438882)
Plaintiff and Appellant, (Santa Barbara County)
v.
CITY OF SANTA BARBARA,
Defendant and Respondent.
Anthony Glover appeals from the judgment entered in favor of the City of
Santa Barbara, respondent. The trial court sustained respondent's demurrer to
appellant's complaint without leave to amend. Appellant was formerly employed by
respondent. His complaint includes causes of action for discrimination, unlawful
termination of employment, and defamation. Before the complaint was filed,
respondent's Civil Service Commission (Commission) reviewed appellant's
termination and issued a final decision upholding it. Appellant contends that the trial
court erroneously ruled that the instant action is barred because he failed to file a
petition for a writ of administrative mandate. We affirm.
Factual and Procedural Background
Appellant's complaint consists of five causes of action. The first, second, third,
and fifth causes of action allege violations of section 12940 of the Fair Employment
and Housing Act (FEHA). (Gov.Code, § 12900 et seq.) These causes of action are
entitled "Employment Discrimination on the Basis of Race and Medical Condition,"
"Harassment on the Basis of Race and Medical Condition," "Failure to Investigate and
Take Appropriate Action In Response to Complaint of Harassment," and "Retaliation."
The fourth cause of action is for defamation.
The complaint alleges as follows: Appellant worked in the Water Resources
Distribution Section of respondent's Public Works Department. He was "regularly
singled out, belittled, chastised and harassed due to his well-documented medical
condition [hypertension and pre-diabetes] and his [African-American] race."
Respondent's employees made defamatory statements about appellant. Respondent
"used those statements as a purported basis upon which to terminate [appellant's]
employment." "The actual motivation" for his termination was "that he [i]s an African
American and suffers from a medical condition."
Before filing the complaint, appellant sought review of his termination before
the Commission. After an evidentiary hearing, the Commission upheld the
termination. Appellant sent a letter to the Commission "requesting an appeal of [its]
decision." The Commission subsequently "upheld the termination in their final
decision."
On April 25, 2013, respondent wrote a letter to appellant informing him that the
Commission's decision had become final on April 24, 2013. The letter warned: "In
accordance with . . . Code of Civil Procedure Section 1094.6, any action seeking
judicial review of this decision must be filed no later than the ninetieth (90th) day
following the day the decision becomes final."1 Instead of seeking judicial review as
provided in section 1094.6, appellant filed the instant complaint.
Respondent demurred to the complaint. In a six-page ruling, the trial court
sustained the demurrer without leave to amend. The court concluded that, pursuant to
the doctrine of collateral estoppel, appellant's FEHA claims are barred because he
failed to file a petition for a writ of administrative mandate challenging the
Commission's final decision. (§§ 1094.5-1094.6.) In addition, the court concluded
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All statutory references are to the Code of Civil Procedure.
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that the doctrine of collateral estoppel barred the defamation claim because the
Commission made a final determination "that the charges of misconduct by [appellant]
were true." The court relied on Miller v. City of Los Angeles (2008) 169 Cal.App.4th
1373 (Miller).
Discussion
In Miller the City of Los Angeles terminated Miller's employment. He
appealed to the Board of Civil Service Commissioners (Board). After an evidentiary
hearing, the Board upheld his discharge. Miller did not file a petition for a writ of
administrative mandate. Instead, he filed a civil action against the City. The
complaint alleged FEHA claims including racial discrimination, harassment, and
retaliation, as well as a claim of defamation. (Miller, supra, 169 Cal.App.4th at p.
1378.) The trial court sustained the City's demurrer to the entire complaint without
leave to amend.
The appellate court affirmed. It noted: "In Johnson v. City of Loma Linda
(Johnson) (2000) 24 Cal.4th 61, [69-70,] . . . our Supreme Court determined: '[U]nless
a party to a quasi-judicial proceeding challenges the agency's adverse findings made in
that proceeding, by means of a mandate action in superior court, those findings are
binding in later civil actions. . . . Exhaustion of judicial remedies . . . is necessary to
avoid giving binding "effect to the administrative agency's decision . . . ." [Citation.]'
[Citation.]" (Miller, supra, 169 Cal.App.4th at p. 1379.) The Miller court continued:
"As the Johnson court stated: 'We conclude that when, as here, a public employee
pursues administrative civil service remedies, receives an adverse finding, and fails to
have the finding set aside through judicial review procedures, the adverse finding is
binding on discrimination claims under the FEHA.' [Citation.]" (Id., at p. 1382.)
Thus, Miller "was collaterally estopped from arguing in his complaint that his
termination was wrongful" in violation of the FEHA. (Id., at p. 1383.) In addition,
collateral estoppel prevented Miller from establishing his defamation claim. (Ibid.)
Based on Miller, supra, 169 Cal.App.4th 1373, and Johnson, supra, 24 Cal.4th
61, the trial court properly sustained the demurrer without leave to amend. The court
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took judicial notice of the Commission's "Final Decision on Appeal of Termination."
The Commission credited testimony that appellant had engaged in misconduct at a
"training session required as part of his job duties." The Commission found that
appellant had consumed alcohol and "had disrupted the session through loud talking
and profanity." He "exhibited belligerent behavior" by "confront[ing] another attendee
in an aggressive manner" and "had to be restrained." His "disruptive behavior
continued for many minutes." He "was ultimately removed from the training session
by one of his co-workers."
The Commission determined that, prior to the training session, appellant had
been properly reprimanded or counseled (1) for reporting to work under the influence
of alcohol, (2) for "deceitfulness" in misrepresenting to his supervisor that he had
taken an examination, and (3) for talking on a cell phone while driving a city vehicle.
Appellant falsely claimed that he had used the cell phone while the vehicle was
parked. His false claim "violated the City's Organizational Values in failing to display
'candor' and 'honesty.' " The Commission also determined that appellant had been
properly demoted for failing to obtain a required Water Distribution Operator license.
"[H]is failure threatened the City's license as a water provider under California law."
The Commission concluded that respondent had "met its burden of proof with respect
to the Final Notice to Dismiss . . . by showing by a preponderance of the evidence that
the Appellant violated City Charter Section 1007 on the basis of acts inimical to the
public service."
Because appellant did not seek judicial review of the Commission's final
decision by filing a petition for a writ of administrative mandate, the Commission's
adverse findings are binding in the instant civil action. (Miller, supra, 169
Cal.App.4th at p. 1382.) Appellant, however, argues that "[c]ollateral estoppel cannot
apply here" because "[t]he claims that [he] is raising in this lawsuit, namely that he
was discriminated against and defamed, were not adjudicated and decided in the Civil
Service hearing."
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"Collateral estoppel precludes a party to an action from relitigating in a second
proceeding matters litigated and determined in a prior proceeding. [Citations.]"
(People v. Sims (1982) 32 Cal.3d 468, 477, fn. omitted.) The Commission decided
that appellant had engaged in misconduct justifying both his termination and prior
disciplinary actions against him, including a demotion. Collateral estoppel precludes
appellant from relitigating these issues in the instant civil action. The Commission's
binding adverse findings defeat his FEHA claims that he was discriminated against
and discharged because of his medical condition and race. They also defeat his
defamation claim. The complaint alleged that the defamatory statements concerned
appellant's improper conduct at the training session, but the Commission found these
statements to be true. "[T]ruth is a complete defense to a defamation claim.
[Citation.]" (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 293.)
Pursuant to Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, the
doctrine of collateral estoppel applies irrespective of whether appellant raised his
discrimination claims at the administrative hearing. In Takahashi a public school
teacher was discharged for incompetency. After the discharge was upheld at an
administrative hearing, the teacher unsuccessfully sought a writ of mandate in the
superior court. She subsequently brought a civil action for damages against her
employer. Her complaint included causes of action for discrimination in employment
on account of race, ancestry, sex, and age. The teacher argued that the doctrine of
collateral estoppel did not preclude her from litigating the discrimination claims
because she had not raised them at the administrative hearing. The appellate court
rejected her argument: "There can be no justification for plaintiff's position that she
should be permitted to fail to assert at the administrative hearing constitutional and
civil rights violations as reasons that made her termination wrongful, fail to prevail on
the writ without attempting to urge or to bring before the court those reasons, and then
be allowed to recover damages in this . . . action that resulted from termination of her
employment alleged to be wrongful based on those same reasons." (Id., at p. 1485.)
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The reasoning of Takahashi applies with equal force here. Like the teacher in
Takahashi, appellant was afforded an opportunity to raise his discrimination claims at
the administrative hearing. "[T]he focus of our inquiry should be on whether the party
against whom issue preclusion is being sought had 'an adequate opportunity to litigate'
the factual finding or issue in the prior administrative proceeding. [Citation.] . . .
Appellate courts of this state have . . . recogniz[ed] that 'it is the opportunity to litigate
that is important in these cases, not whether the litigant availed himself or herself of
the opportunity. [Citation.]' [Citation.]" (Murray v. Alaska Airlines, Inc. (2010) 50
Cal.4th 860, 869.)
Appellant asserts that he was affirmatively precluded from raising his
discrimination claims at the administrative hearing. We disregard the assertion
because it is not supported by citation to the record. (Hernandez v. Vitamin Shoppe
Industries, Inc. (2009) 174 Cal.App.4th 1441, 1453 [" 'an appellate
court may disregard any factual contention not supported by a proper citation to the
record' "].)
Appellant contends that the judgment must be reversed because he "was
prevented from calling the witnesses that would have supported his position.
Therefore, he was not allowed to present evidence that supported his case." We
disregard this contention because it is also not supported by citation to the record.
(Hernandez v. Vitamin Shoppe Industries, Inc., supra, 174 Cal.App.4th at 1453.) Even
if appellant were prevented from calling witnesses at the administrative hearing, his
"failure to make an offer of proof or other proper record of the [witnesses'] testimony
defeats the claim." (Gutierrez v. Cassiar Min. Corp. (1998) 64 Cal.App.4th 148, 161.)
Finally, appellant argues: "To allow [respondent] . . . to absolutely control the
Civil Service Process without providing proper notice as to what limitations and
restrictions will be placed on the terminated employee if they elect to proceed with the
Civil Service hearing, such as barring all claims from being litigated in a court of law,
is a travesty of justice and something that cannot be allowed to continue. . . . Full
notice and disclosure must be given to a terminated employee[] so that he or she can
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make an educated decision as to which forum to use." Appellant claims that, because
respondent failed to provide him with the requisite notice, his due process rights were
violated. In his reply brief, appellant asserts: "A one page or less document could
fully inform an employee of his or her options and the potential impact on his or her
rights of a decision to proceed with Civil Service."
Appellant is in effect arguing that, when he was discharged, respondent was
required to give him a warning along the following lines: " '[G]overnment employees
who believe they have suffered employment discrimination may choose to pursue
remedies provided by either the Fair Employment and Housing Act (FEHA) or
internal grievance procedures such as a city, county or state civil service commission.
Public employees who choose to file a complaint before the DFEH [Department of
Fair Employment and Housing] are not required to exhaust the remedies provided by a
civil service commission.' . . . [¶] . . . '[I]f a public employee has requested a non-
FEHA administrative remedy such as a civil service commission hearing and obtained
an adverse decision, the employee must exhaust judicial remedies by filing a petition
for writ of mandate in the trial court [and must succeed in setting aside the decision],
or else the administrative decision will be binding on subsequent FEHA claims. . . .'
[Citation.]" (Miller, supra, 169 Cal.App.4th 1380-1381, brackets added, quoting from
Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1141-
1142.)
Appellant has forfeited his claim that respondent was required to give such a
warning upon his discharge from employment. The claim is not supported by
meaningful legal analysis and citations to pertinent authority. " 'A judgment or order
of the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error must be
affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "To
demonstrate error, appellant must present meaningful legal analysis supported by
citations to authority . . . ." (In re S.C. (2006) 138 Cal.App.4th 396, 408.)
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Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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James E. Herman, Judge
Superior Court County of Santa Barbara
______________________________
Lauren John Udden, Garry M. Tetalman. For Appellant.
Ariel Pierre Calonne, City Attorney, City of Santa Barbara and John S.
Doimas, Deputy City Attorney, for Respondent.
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