Articles

Not Officially published
(Cal. Rules of Court, rules 976, 977)
(Cite as: 1977 WL 913107 (Cal.App. 2 Dist))
Elo CARRILLO, Plaintiff and Appellant,
v.
THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, et al., Defendants and Respondents
No. B105848.
California Court of Appeal, Second District, Dec. 4, 1997.
ZEBROWKSI, J.

*1 Plaintiff was previously an employee of the University of California. She filed several FEHA claims against the University and certain employees of the University (the “University defendants”). Although plaintiff properly followed the administrative procedures of the FEHA, and properly received a right-to-sue letter from the FEHA, she allegedly did not exhaust certain internal administrative remedies which the University allegedly provides. More importantly here, plaintiff’s complaint did not allege exhaustion of any such internal administrative remedies. The University defendants demurred on grounds of failure to exhaust administrative remedies. The trial court sustained the demurrer without leave to amend and dismissed plaintiff’s FEHA claims. This appeal followed.

The law which properly applies to determine whether administrative remedies must be exhausted in varying situations was not well developed in either the trial court or in this court. We therefore sent counsel a letter setting forth several questions to be answered at oral argument. The answers received were not completely sufficient to dispel the uncertainty here. Significant additional research and study would be necessary to determine with accuracy the full scope of the plaintiff’s obligations, if any, with respect to the University’s internal procedures. We have concluded, however, that we need not expend the resources for such additional research and study at this juncture, for this reason: The applicable law has now been developed with more clarity than that presented to the trail court. The level of development we have now achieved clearly shows that the University defendants’ demurrer, based on failure to exhaust administrative remedies, could not properly be sustained based on the authorities offered in support of that demurrer in either the trial court or in this court. We will therefore reverse and remand with directions to the trail court to overrule the demurrer to the FEHA claims on the basis of failure to exhaust administrative remedies, to order the University to answer, and to conduct further proceedings on those FEHA claims consistently with this opinion.

DISCUSSION

The University defendants’ briefing on exhaustion of administrative remedies begins with citation of several cases which state purposes which the exhaustion requirement is intended to serve. These citations, however, do not explain the origin of the exhaustion requirement or how it comes to apply in a specific circumstance or specifically to plaintiff’s FEHA claim. The University defendants’ brief then turns to the seminal case of Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 476, 131 Cal.Rptr. 90, 551 P.2d 410. Westlake ruled that a doctor, was required to exhaust the hospital’s internal administrative remedies before filing suit. The origin of the requirement is not explained in Westlake as clearly as would be desirable, but the cases relied upon by Westlake in imposing this requirement were all cases involving members of organizations who were deemed to be in a contractual relationship with the organization of which they were a member. The theory of Westlake was that those members had entered into a contractual relationship which included an obligation to follow the internal procedures of the organization before filing suit against that organization.

*2. The instant case does not involve an organization of which plaintiff is a member and with which she has a contractual relationship. Instead, this case involves a public employee and a public employer. The relationship between a public employee and a public employer is normally governed by statute, although what statutes might govern the relationship involved here (other than possibly the FEHA) has not been stated anywhere in the briefing. What is clear, however, is that it has not been shown that the contractual rationale of Westlake has any application to the current circumstances.

After the discussion of Westlake, the briefing of the University defendants turns to a variety of cases which have held that administrative remedies must be exhausted before a plaintiff files suit in a variety of circumstances. The first is McHugh v. County of Santa Cruz (1973) 33 Cal.App3d 533, 538, 109 Cal Rptr. 149. McHugh was a tax case. The plaintiff filed suit to recover property taxes paid under protest, but did not exhaust available administrative remedies relating to disputed taxes. McHugh has little bearing on the instant case.

Next is Sunnyvale Public Safety Officers Assn. v. City of Sunnyvale (1975) 55 Cal.App3d 732, 735, 127 Cal.Rptr. 863. In Sunnyvale, police officers and firefighters sued the city, claiming that they were entitled to overtime pay. These plaintiffs were parties in a Memorandum of Understanding (MOU) with the city. A city ordinance provided for certain administrative procedures in the vent of impasse over interpretation or implementation of an MOU. Nevertheless, the plaintiffs filed suit without exhausting their administrative remedies. The Court of Appeal opinion sweepingly describes the exhaustion doctrine as one of jurisdiction, then proceeds to hold it nevertheless inapplicable because the Court of Appeal regarded the particular administrative remedies in question as “ineffective.” We need not pause to ponder how a doctrine of (apparently subject matter) jurisdiction, if it is truly a doctrine of jurisdiction, can be swept aside, with jurisdiction, although initially lacking, being created by the court simply in a finding that the administrative remedies are “ineffective.” The facts and context of the case are so far different from the instant case that no useful applicability is discernible. Wallin v. Vienna Sausage Manufacturing Co., (1984) 156 Cal.App.3d 1051, 203 Cal.Rptr. 375 comes next. Wallin concerns statements made in a grievance procedure conducted pursuant to a collective bargaining agreement. The court held that such statements are privileged; the case has nothing whatever to do with exhaustion of administrative remedies. It was cited for the general preposition that grievance procedures are favored by the law.

Next comes a recent Ninth Circuit case, Hashimoto v. Dalton (9th Cir.1997) 118 F.3d 671. Hashimoto was a federal Title VII action in which a civilian Navy employee sued the Navy. The issue was whether certain of plaintiff’s claims had to be presented to the Merit Systems Protection Board. How the law regarding the federal Merit Systems Protection Board in a Title VII case has any bearing on the instant case is not explained, except for the implicit abstract proposition that there are situations in which administrative remedies must be exhausted. The issue in the instant case is whether the instant case is one of those situations. Hashimoto offers nothing other than the general proposition that such situations do exist. Hashimoto does not even involve California law.

*3 Next is Ishimatsu v. Regents University of California (1968) 266 Cal.App2d 854, 72 Cal.Rptr. 756. Ishimatsu presents the glimmer of a path to the law that might properly apply in this situation. Ishimatsu itself, however, does not answer the instant question. In Ishimatsu, plaintiff librarian at the University was terminated. According to factual findings of the court, she was terminated because she lacked supervisorial qualifications. No FEHA, discrimination, harassment, etc., claim was involved. Plaintiff availed herself of an internal University administrative procedure to contest her termination. After an unfavorable ruling, she applied for a writ of administrative mandate, which was denied. The primary question on appeal was whether the substantial evidence rule applied to the writ proceeding. The court ruled that it did, and that the trail court could overturn the University’s findings only if they were unsupported by substantial evidence. The University defendants in the instant case similarly argue that plaintiff in the instant case was required to exhaust the University’s administrative remedies and then, in case of an unfavorable outcome, to seek administrative review by petition for a writ of administrative mandate, which could be granted only if the University’s findings were unsupported by substantial evidence. The University thus contends that it can avoid FEHA claims by deflecting them into an administrative proceeding that can easily operate to eliminate the availability of jury trial. Maybe so. But nothing in the authorities cited by the University so states, and it is not readily apparent that it was the intention of the Legislature in enacting the provision of the FEHA to allow such claims to be diverted in this fashion.

Next come Regents of the University of California v. City of Wilshire Boulevard (1978) 77 Cal.App.3d 130, 143 Cal.Rptr. 276. Regents concerned whether the University was exempt from local city permit fees. It is cited for the proposition that internal University policies and procedures are the “the equivalent of state statutes.” What Regents actually says is that “policies established by the Regents as matters of internal regulation may enjoy a status equivalent to that of the state statues.” (Regents, at p. 135.) It is a big leap from this to a conclusion that an internal policy of the University, not even specifically identified in the briefing, necessarily overrides the provisions of the FEHA enacted by the Legislature. It is at least the case that this proposition has not been developed to the extent that it can be accepted with any confidence in its accuracy.

The University next cites City of Fresno v. Superior Court (1987) 188 Cal.App3d 1484, 1493, 234 CalRptr. 136. In City of Fresno, A discharged employee filed suit without exhausting remedies established by City ordinance. The Court of Appeal ruled that the former employee’s suit had to be dismissed for failure to exhaust. City ordinances set up a Civil Service Board and established administrative procedures for review of such claims. City of Fresno unfortunately relies on Westlake. As noted above, Westlake was based on a contractual theory. Involved both here and in City of Fresno are public employees. City of Fresno faults the lower court for making a distinction between a private hospital and a public entity, claiming that no basis for such a distinction exists. It quite obviously does, when one considers the contractual basis for the holding in Westlake as contrasted with the statutory nature of public employment. Westlake did not (and could not properly) make up the exhaustion requirement out of pure nothingness. Instead, Westlake found the exhaustion requirement in the contractual relationship of the parties, as the cases relied upon by Westlake and the discussion in Westlake reveal. The criticism directed by the Court of Appeal in City of Fresno against the trail court in City of Fresno therefore appears misdirected and lacking in basis. The result in City of Fresno nevertheless appears correct, since specific law was in place governing a city employee’s rights and the court merely ruled that a public employee’s employment is governed by those laws. City of Fresno did not involve an FEHA claim or other claim of discrimination or harassment covered by a specific statutory enactment. Moreover, City of Fresno is less than persuasive inasmuch as it apparently failed to discern the contractual legal basis for the holding in Westlake.

*4 After another citation to Westlake inspired by the off-target analysis in City of Fresno, the University next cites Edgren v. Regents of the University of California (1984) 158 Cal.App.3d 515, 205 Cal.Rptr. 6. Edgren is again less than completely helpful. It cites various cases imposing an exhaustion requirement in various circumstances, including citations to Westlake, which is rather clearly distinguishable as discussed above. Additionally, Edgren does not concern a FEHA claim or other claim of discrimination or harassment based on statute. Edgren begins by simply declaring that is “well settled” that administrative procedures must be exhausted, without identifying the legal theory on which that requirement can be imposed in any given situation, or how it could be imposed upon the public employee in the situation there under review. Edgren certainly does not reveal how a court can unilaterally impose an exhaustion requirement to override or modify the specific provisions of a statue enacted by the Legislature. Code of Civil Procedure section 1858 states the “general rule” for construction of statutes as follows: “In the construction of a statute…the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted…” (See Manufacturers Life (1995) 10 Cal.4th 257, 274,[41 Cal.Rptr.2d 220, 895 P.2d 561[citing § 1858 as one of the “[well established canons of statutory construction” and describing it as a “mandate”]; Crusader Ins. Co. v. Scottsdale Ins. Co. (1997) 54 Cal.App.4th 121, 133-134, 62 Cal.Rptr.2d 620.) Even if Edgren’s assumption that an exhaustion requirement did apply in Edgren is correct, there is nothing in Edgren to support the proposition that internal remedies created by the University can supplant the FEHA remedies created by the Legislature. If there is a basis on which plaintiff’s FEHA claims may be burdened with an exhaustion requirement in addition to the exhaustion requirement expressly stated in the FEHA, nothing in Edgren reveals what that basis is.

The University finally cites Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1480, 249 Cal.Rptr. 578 cert denied, 490 U.S. 1011, 109 S.Ct. 1654, 104 L.Ed2d 168 (1989). Takahashi involved a teacher whose employment was governed by detailed provisions of the Education Code. The teacher was terminated, and hearings were conducted by the Commission on Professional Competence pursuant to the Education Code. Education Code section 44944 provided a comprehensive scheme for the conduct of hearings to determine if cause existed to terminate permanent certificated employees of a school district. The teacher received an adverse ruling. She petitioned for a writ of mandate, which was denied. She then filed suit for breach of employment contract and conspiracy to defraud. Plaintiff followed that suit with a second suit alleging various claims, including racial and sexual discrimination. The two suits were consolidated, and defendant moved for summary judgment. Summary judgment was granted on grounds of res judicata, because all of the teacher’s claims had been, or could have been, fully determined in the administrative proceedings. Takahashi was therefore not an exhaustion of administration remedies case (the University did not cite it here on that subject), but rather a res judicata case. It does not advance our analysis of the instant case. Takahashi involved an administrative procedure created by the Legislature specifically directed to dealing with personnel disputes involving teachers. The Legislature also reacted the FEHA. Applying normal standards of statutory construction, the specific normally controls over the general. It is therefore not surprising that the specific provisions of the Education Code control in the case of a teach subject to those specific provisions. There has been no briefing of analogous law applicable to plaintiff in the instant case.

*5 This state of the legal analysis is not completely satisfactory. It leaves one with the feeling that there is more to this. It is not sufficient to allow precise determination of the legal effect of the University’s internal procedures. The analysis is further weakened by the Pavlovian leap to Westlake, without analysis and apparently without understanding of the basis for Westlake, reflected in some of the cases cited. Once the Pavlovian tendency to rely on Westlake without analysis is brought under control by realization that Westlake was based on a contractual relationship that does not exist here, there is nothing in this briefing to support the sustaining of a demurrer on grounds of failure to exhaust.

DISPOSITION

The judgment dismissing plaintiff’s complaint after sustaining demurrer without leave to amend on grounds of failure to exhaust administrative remedies is reversed. The granting of defendant’s motion for attorney’s fees is consequently also reversed. The request for judicial notice is denied as moot in view of these rulings. The matter is remanded for further proceedings consistent with this opinion. Plaintiff to recover costs on appeal. BOREN, P. J. and FUKUTO, J., concur.
END OF DOCUMENT

Cite as: 1997 WL 913107 (Cal. App. 2 ^nd Dist.) (unpublished)
Decision in favor of plaintiff/Appellant
Toni J. Jaramilla for Plaintiff /Appellant

Court of Appeal, Second District,

Elo CARRILLO, Plaintiff and Appellant

v.

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., DEFENDANTS AND RESPONDENT
No. B105848.

Dec. 4, 1997.

ZEBROWSKI, J.

Plaintiff was previously an employee of the University of California. She filed several FEHA claims against the University and certain employees of the University (the “University defendants”). Although plaintiff properly followed the administrative procedures of the FEHA, and properly received a right-to-sue letter from the FEHA, she allegedly did not exhaust certain internal administrative remedies which the University allegedly provides. More importantly here, plaintiff’s complaint did not allege exhaustion of any such internal administrative remedies. The University defendants demurred on grounds of failure to exhaust administrative remedies. The trial court sustained the demurrer without leave to amend and dismissed plaintiff’s FEHA claims- This appeal followed.

The law which properly applies to determine whether administrative remedies must be exhausted in varying situations was not well developed in either the trial court or in this court. We therefore sent counsel a letter setting forth several questions to be answered at oral argument. The answers received were not completely sufficient to dispel the uncertainty here. Significant additional research and study would be necessary to determine with accuracy the full scope of the plaintiff’s obligations, if any, with respect to the University’s internal procedures. We have concluded, however, that we need not expend the resources for such additional research and study at this juncture, for this reason: The applicable law has now been developed with more clarity than that presented to the trial court. The level of development we have now achieved clearly shows that the University defendants’ demurrer, based on failure to exhaust administrative remedies, could not properly be sustained based on the authorities offered in support of that demurrer in either the trial court or in this court. We will therefore reverse and remand with directions to the trial court to overrule the demurrer to the FEHA claims on the basis of failure to exhaust briefing of analogous law applicable to plaintiff in the instant case.

*5 This state of the legal analysis is not completely satisfactory. It leaves one with the feeling that there is more to this. It is not sufficient to allow precise determination of the legal effect of the University’s internal procedures. The analysis is further weakened by the Pavlovian leap to Westlake , without analysis and apparently without understanding of the basis for Westlake , reflected in some of the cases cited. Once the Pavlovian tendency to rely on Westlake without analysis is brought under control by realization that Westlake was based on a contractual relationship that does not exist here, there is nothing in this briefing to support the sustaining of a demurrer on grounds of failure to exhaust.

DISPOSITION

The judgment dismissing plaintiff’s complaint after sustaining demurrer without leave to amend on grounds of failure to exhaust administrative remedies is reversed. The granting of defendant’s motion for attorney’s fees is consequently also reversed. The request for judicial notice is denied as moot in view of these rulings. The matter is remanded for further proceedings consistent with this opinion. Plaintiff to recover costs on appeal.

BOREN, P.J. and FUKUTO, J., concur.
Cal. App, 2 Dist.,1997.

Decision in Favor of Plaintiff/Appellant
Toni J. Jaramilla for Plaintiff/Appellant

Carrillo v. Regents of University of California
Cite as: 1997 WL 913107 (Cal. App. Z Dist.) (unpublished) Westlaw

Citations for Briefs and Other Related Documents on Westlaw:

• 1997 WL 33562726 (Appellate Brief) Amicus Curiae Brief in Support of Appellant Elo Carillo (Aug. 21, 1997) Original Image of this Document (PDF)
• 1997 WL 33562816 (Appellate Brief) Appellant Carrillo’s Reply Brief (Aug. 04, 1997) Original Image of this Document (PDF)
• 1997 WL 33562808 (Appellate Brief) Respondents’ Brief on Appeal (Jul. 14, 1997)