Judge: Armen Tamzarian, Case: 22STCV36102, Date: 2023-03-14 Tentative Ruling

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Case Number: 22STCV36102    Hearing Date: March 14, 2023    Dept: 52

Defendant Regents of the University of California’s Demurrer and Motion to Strike Portions of First Amended Complaint

Demurrer

Defendant Regents of the University of California demurs to the fourth and sixth causes of action alleged in plaintiff Arthur Little’s first amended complaint.

Requests for Judicial Notice

Defendant requests judicial notice of two documents: the University of California Whistleblower Protection Policy (RJN, Ex. B) and UCLA Procedure 620.1: Whistleblower Retaliation Complaints (RJN, Ex. C).  These records are subject to judicial notice as regulations issued by a public entity under Evidence Code section 452(b) and as official government acts under section 452(c).  (See Lachtman v. Regents of University of California (2007) 158 Cal.App.4th 187, 207 [“The Regents of the University of California have rulemaking and policymaking power, and their policies and procedures have the force and effect of statute”].)

Plaintiff Arthur Little did not oppose these requests.

Defendant’s requests for judicial notice of Exhibits B and C are granted.

4th Cause of Action: Whistleblower Retaliation

Plaintiff does not allege sufficient facts for this cause of action because he does not allege he exhausted his internal administrative remedies.  “[A]n employee of the Regents of the University of California … must exhaust university internal administrative remedies before filing suit in superior court for retaliatory termination under … Labor Code section 1102.5.”  (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 317.)  The University of California’s whistleblower protection policy requires employees to “file their complaints with a Sworn Statement within 12 months of the actions believed to be retaliatory.”  (RJN, Ex. B, p. 1.)  UCLA procedure 620.1: whistleblower retaliation complaints imposes the same requirement.  (RJN, Ex. C, pp. 2-3.)

Plaintiff concedes he did not exhaust his internal administrative remedies for this cause of action.  He relies on an exception to the rule:  “[T]he rule requiring exhaustion of administrative remedies does not apply where an administrative remedy is unavailable.”  (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 217.)  “The doctrine of exhaustion of administrative remedies does not require a litigant to present his or her claim to an administrative body powerless to grant relief.”  (Id. at p. 218.)  “There must be clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties.”  (Life Care Centers of America v. CalOptima (2005) 133 Cal.App.4th 1169, 1177, internal quotes and alterations omitted.)

This exception does not apply.  Both the University of California’s whistleblower protection policy and UCLA procedure 620.1 clearly define the machinery for submitting, evaluating, and resolving complaints of whistleblower retaliation.  Both describe the administrative process at length and in detail.  The former policy provides that “the Chancellor will award any appropriate relief” and can take “disciplinary action against” an employee who violated the policy.  (RJN, Ex. B, p. 11.)  UCLA’s policy similarly provides that the decisionmaker shall “determine an appropriate remedy for the complainant and the appropriate action(s) to be taken against any employee who engaged in retaliation.”  (RJN, Ex. C, p. 4.) 

Plaintiff’s allegations of whistleblower retaliation arise from various hostile or offensive interactions with colleagues and administrators (FAC, ¶¶ 16-29, 33-37) and from not being paid “the standard rate of compensation” for developing and teaching an extra course (¶ 38).  Defendant had the power to discipline the people who allegedly retaliated against him.  It had the power to provide plaintiff the compensation he alleges he was owed. 

Rather than truly arguing the procedure lacks clearly defined machinery or that the University lacks power to grant relief, plaintiff’s opposition contends, “When Plaintiff raised his concerns, no one at UCLA ever told him that he needed to file a sworn whistleblower statement.  His complaints were just disregarded.  To the extent that UCLA required that Plaintiff assert his complaints in an alternative format, the onus was on UCLA to have so informed Plaintiff that his reports were somehow inadequate.  At no time did UCLA indicate that the format in which Plaintiff gave notice was inadequate.”  (Opp., p. 6.)  Plaintiff cites no authority for the proposition that defendant had to do these things.  He does not dispute the existence or contents of the University of California’s whistleblower protection policy (RJN, Ex. B) or UCLA procedure 620.1: whistleblower retaliation complaints (RJN, Ex. C). 

Plaintiff also relies on findings by former California Supreme Court Justice Carlos Moreno’s investigation into UCLA’s nondiscrimination policy.  (Opp., pp. 6-7; FAC, ¶¶ 30-31.)  Even assuming the court must accept Justice Moreno’s conclusions, the investigation and report are about discrimination—not whistleblower retaliation.    

Finally, plaintiff argues that defendant’s “inconsistent and untimely findings [regarding] Plaintiff’s complaint in 2019, make it clear that UCLA did not provide a sufficient administrative remedy to Plaintiff.”  (Opp., p. 7.)  This argument conflates the availability of a remedy with the outcome of the administrative process.  That UCLA did not provide a remedy to plaintiff does not mean it was powerless to do so.

6th Cause of Action: Declaratory and Injunctive Relief

This cause of action fails for two reasons.  First, it is not truly a cause of action.   “[I]njunctive and declaratory relief are equitable remedies, not causes of action.”  (Faunce v. Cate (2013) 222 Cal.App.4th 166, 173.) 

Second, any claim for declaratory relief is superfluous.  Declaratory relief is “unnecessary and superfluous” when the issues involved are already “fully engaged by other causes of action.”  (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324.)  The declaration plaintiff seeks is “that his race and protected activity was a substantial motivating factor in the discriminatory decisions directed against him.”  (FAC, ¶ 77.)  This declaration simply mirrors the element of causation for plaintiff’s causes of action for race discrimination and retaliation.  It is superfluous.

Plaintiff’s opposition did not address the demurrer to the sixth cause of action.

Disposition

            Defendant Regents of the University of California’s demurrer to plaintiff Arthur Little’s fourth and sixth causes of action is sustained with 20 days’ leave to amend.

Motion to Strike

Defendant moves to strike nine portions of the first amended complaint that concern events from 1993 to 2019.  The parties dispute whether these allegations are untimely.  Defendant argues they concern events barred by the statute of limitations.  Plaintiff argues the continuing violation doctrine applies as an exception to the statute of limitations. 

Regardless of whether the continuing violation doctrine applies, the court cannot conclude at this stage that these allegations are “irrelevant matter” that should be stricken.  Courts may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.”  (CCP § 436(a).)  Defendant relies on Code of Civil Procedure section 431.10(b)(3) (memo, p. 3) which defines “irrelevant matter” to include “[a] demand for judgment requesting relief nor supporting by the allegations of the complaint.”  But defendant moves to strike factual allegations underlying plaintiff’s causes of action.  These portions of the first amended complaint are not themselves a demand for judgment requesting relief.

Courts may strike “a portion of a cause of action” that is “substantively defective.”  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)  But assuming the allegations of events before 2020 would not be actionable, they may still be relevant or pertinent (even if not essential) to plaintiff’s causes of action. 

The court is not now deciding whether evidence of these events will be relevant or admissible at trial.

Disposition

Defendant Regents of the University of California’s motion to strike is denied.