Judge: Kenneth J. Medel, Case: 37-2022-00014613-CU-WT-CTL, Date: 2024-03-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - February 08, 2024

02/09/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  Wrongful Termination Demurrer / Motion to Strike 37-2022-00014613-CU-WT-CTL CHOI VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/18/2023

The City of San Diego's Demurrer is OVERRULED.

Plaintiff – a former fire engineer – alleges Violations of the California Fair Employment & Housing Act and the Firefighters' Bill of Rights.

Plaintiff was formerly employed as a Fire Engineer with the San Diego Fire-Rescue Department. On August 4, 2020, Plaintiff received a Notice of Fact-Finding (NOFF) letter, indicating he was the subject of possible misconduct regarding a vehicle rescue that occurred on April 17, 2020. (Complaint ¶¶ 10, 12.) Plaintiff's NOFF interview was held on August 26, 2020, and, on January 5, 2021, Plaintiff received an Advance Notice of Termination. (Compl., ¶¶ 14, 15.) Plaintiff was actually terminated on April 29, 2021.

(Compl., ¶ 19.) Plaintiff alleges management-level employees of the Department harbor ill-will towards Plaintiff stemming from a prior lawsuit Plaintiff filed against the City and, due to this motivation, have retaliated against Plaintiff in violation of the Fair Employment and Housing Act ('FEHA') in pursuing and imposing the discipline referenced above. (Compl. at ¶¶ 7, 18.) The City demurs based upon a failure to exhaust administrative remedies.

According to the City's Demurrer: 'Plaintiff fails to state facts sufficient to constitute a cause of action against the City of San Diego because Plaintiff failed to exhaust his chosen administrative remedy and failed to plead exhaustion of his chosen administrative remedy.' The Court has held in Schifando v. City of Los Angeles 31 Cal.4th 1074 (2003) that exhaustion of internal grievance procedures is not required to pursue FEHA claims against the government. However, the Court also indicated that having chosen a forum for discrimination claims, a public employee must exhaust 'the chosen administrative forum's procedural requirements.' Page v. Los Angeles County Probation Dept. 123 Cal.App.4th 1135, 1142 (2004), citing Schifando, 31 Cal.4th 1088. In the Page case, the plaintiff Page, who was an employee of the Los Angeles County Probation Department, first filed a grievance with the Los Angeles County Civil Service Commission concerning alleged disability discrimination and failure to accommodate. Then, while administrative proceedings were still pending, Page filed a complaint with the DFEH, obtained a right-to-sue letter, and filed a FEHA lawsuit. The appellate court affirmed the trial court's ruling which sustained the County's demurrer to the FEHA lawsuit without leave to amend, finding that Page had chosen the civil service commission process.

Page had to await a final Commission decision and, if it was adverse, then file a petition for writ of mandate in the trial court to overturn the Commission decision. Page, 123 Cal.App.4th at 1142. The court found that it lacked jurisdiction over Page's premature FEHA action. Page had failed to exhaust both her administrative and judicial remedies before filing suit. Page, 123 Cal.App.4th at 1142-1143.

The City argues that, in this case, like in Page, Plaintiff first filed a claim with the San Diego Civil Service Commission. RFJN, Exhibit 1. Then, with internal administrative proceedings pending, Plaintiff subsequently filed a complaint with the DFEH, obtained right-to-sue letters, and filed a lawsuit in San Diego Superior Court. RFJN, Exhibit 3; Compl., ¶ 25. On May 10, 2022, the San Diego Civil Service Calendar No.: Event ID:  TENTATIVE RULINGS

3009617  29 CASE NUMBER: CASE TITLE:  CHOI VS CITY OF SAN DIEGO [IMAGED]  37-2022-00014613-CU-WT-CTL Commission held a hearing in re Appellant Steve Choi. RFJN, Exhibit 3. After learning about the civil complaint filed less than one month earlier (April 19, 2022), Plaintiff's CSC counsel requested a 120-day continuance of the CSC hearing. Id. at 7:12- 13:14. As a condition of the stay, Plaintiff agreed to not seek any sort of back wages for the time the CSC is stayed. Id. at 13:15-19. Over the Appointing Authority's objection, the Commissioner granted Plaintiff's request to stay the CSC hearing. Id. at 13:20-14:22.

According to the City, notwithstanding the stay, the Commissioner heard argument and ruled on evidentiary objections at the May 10, 2022, hearing. Specifically, the Commissioner heard argument and made evidentiary rulings regarding the admissibility of character evidence, the admissibility of live testimony regarding prior discipline, and the admissibility of certain exhibits. See, e.g., RFJN Ex. 3 at 36:3-38:13. According to the City, 'having chosen the CSC process and participated in evidentiary hearings, Plaintiff is not simply free to abandon the CSC process for what he perceives to be greener pastures in the Superior Court.' In Opposition, plaintiff argues that Page is distinguishable. In Page, the plaintiff initiated a civil service hearing held over three days. The civil service officer then issued an opinion finding against Page and for her former employer. Page, at 1139. Six months after the adverse administrative decision, and without filing a petition for writ of mandamus to challenge the adverse administrative decision, Page filed a lawsuit alleging disability discrimination. Page at 1140. Page approvingly cites Schifando by stating: 'Moreover, if 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, or else the administrative decision will be binding on subsequent FEHA claims. (Schifando, at p. 1090)[.]' (Emphasis added). Id. at 1142. 'Page chose the civil service commission process and proceeded through three days of hearing over the course of four months, resulting in a comprehensive decision by the hearing officer.' Id. In this case, the hearing officer in this case has not conducted a single hearing on the substance of the matter and has not issued a single substantive decision; there are no findings of fact, no conclusions of law, and no determinations regarding the remedies at issue. In short, the hearing has not happened yet, so there hasn't been a 'comprehensive decision by the hearing officer', let alone an adverse one – as required by Schifando and Page. (See also, Ahmadi-Kashani v. Regents of the University of California (2008) 159 Cal.App.4th 449, 459 ('Because Ahmadi–Kashani never participated in a quasi-judicial hearing as part of her aborted grievance process, there was no decision rendered that would be entitled to preclusive effect in a subsequent court proceeding.') There is a risk to plaintiff that a decision rendered by the Board may have a preclusive effect on the FEHA claim. Several courts have recognized the risks of pursuing both an internal administrative remedy and a FEHA civil action given the possible application of collateral estoppel in the FEHA action to knock out a key element before trial. (Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1086; Castillo v. City of Los Angeles, supra, 92 Cal.App.4th at pp. 479–480, 111 Cal.Rptr.2d 870. However, this is not an issue for demurrer – absent a definitive decision by the Commission where the Court could make a ruling on its preclusive effect. There is no exhaustion requirement. The only exhaustion requirement for FEHA is the claim submission, which apparently has been denied by the City.

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