Judge: Armen Tamzarian, Case: 22STCV36102, Date: 2024-12-06 Tentative Ruling

Case Number: 22STCV36102    Hearing Date: December 6, 2024    Dept: 52

Plaintiff Arthur Little’s Motion to Amend or Supplement the Third Amended Complaint

Plaintiff Arthur Little moves for leave to file a fourth amended complaint.

Requests for Judicial Notice

Defendant Regents of the University of California requests judicial notice of three documents.  The first document is a letter dated August 21, 2024, regarding plaintiff’s whistleblower complaint to UCLA.  (RJN, Ex. A.)  Judicial notice of this letter is unnecessary because plaintiff submitted it as an exhibit in support of his motion.  (Gil Decl., ¶ 7, Ex. 3.) 

The other two documents are the University of California Whistleblower Protection Policy (WPP) (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”].)

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

Discussion

            Plaintiff moves for leave to amend or supplement his complaint to renew his cause of action for whistleblower retaliation under Labor Code section 1102.5.  On August 20, 2024, the court granted defendant’s motion for summary adjudication of that cause of action.  The court ruled plaintiff could not succeed on that claim because, though he began the process of exhausting his internal remedies as required, that process was incomplete. 

Plaintiff argues he has now completed the process of exhausting his internal remedies.  He relies on a letter from UCLA’s Compliance Office dated August 21, 2024.  (Gil Decl., Ex. 3.)  The letter states the Compliance Office accepted and would investigate several portions of plaintiff’s internal whistleblower retaliation complaint, but “dismiss[ed] UCLA as a respondent as entities cannot be a respondent under the WPP.”  (Id., p. 4.)  In this case, the defendant is an entity, the Regents of the University of California.  Plaintiff thus contends that the internal grievance process is over as against any entity, so he may proceed in this action against this entity defendant.

That the WPP and UCLA’s policy apply only to complaints against individual employees does not mean plaintiff has now exhausted his administrative remedies against defendant.  The WPP policy is analogous to the policy in Campbell v. Regents of University of California (2005) 35 Cal.4th 311 (Campbell), which provided, “ ‘Any UC employee ... may file a written complaint against a University employee.’ ”  (Id. at p. 318, italics added.)  The court held, “[A]n employee of the Regents of the University of California … must exhaust university internal administrative remedies before filing suit in superior court for” whistleblower retaliation under “Labor Code section 1102.5.”  (Id. at p. 317.)

            UCLA procedure 620.1 policy applies the standards of “the University’s Whistleblower Protection Policy (WPP)” (RJN, Ex. C, § I), which means the policy applicable to the entire University of California (RJN, Ex. B).  The WPP defines “Retaliation Complaint” as a complaint “that includes a Sworn Statement and alleges that a University employee retaliated by taking an Adverse Personnel Action against the Complainant.”  (Id., § II, italics added.)  It prohibits retaliation by “a University employee” and provides for “appropriate action against employees who violate th[e] policy.”  (Id., § III.A.)  The WPP also repeatedly refers to the “accused employee.”  (Id., §§ III.B.3, III.D.2, III.D.4.a-e, III.F.1, III.H.3.)  As in Campell, plaintiff must exhaust his internal administrative remedy as against individual employees before he can sue the Regents of the University of California.      

Though UCLA is investigating plaintiff’s complaint as against specified employees instead of the University itself, it is investigating the same events for which plaintiff alleges defendant Regents of the University of California is liable.  “Even when an administrative remedy does not resolve all issues or provide complete relief, it still may reduce the scope of litigation.  [Citation.]  Requiring a party to pursue an available administrative remedy aids judicial review by allowing the agency to draw upon its expertise and develop a factual record for the court’s consideration.”  (Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 383.)  Finding that plaintiff has completed the internal exhaustion process in these circumstances would undermine the policy behind the requirement.

Permitting plaintiff to renew his cause of action for whistleblower retaliation while his internal grievance process is ongoing would be futile.  Granting this motion would therefore not serve the interests of justice.  (See Foroudi v. Aerospace Corp. (2020) 57 Cal.App.5th 992, 1000 [“ ‘leave to amend should not be granted where, in all probability, amendment would be futile’ ”].)

Disposition

            Plaintiff Arthur Little’s motion for leave to amend or supplement his third amended is denied.