Judge Mitchell L. Beckloff, Case Number: 22STCP04268, Date: 2023-12-06 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 22STCP04268, Date: 2023-12-06 Tentative Ruling

[Tentative] ORDER ON DEMURRERS TO SECOND AMENDED PETITION FOR WRIT OF MANDATE

Respondents, County of Los Angeles Employee Relations Commission (ERCOM) and the County of Los Angeles (collectively, Respondents), each demur to the second amended petition for writ of mandate (SAP) filed by Petitioner, Crystal Martinez. Respondents assert the SAP fails to state a cause of action, and Petitioner failed to exhaust her administrative remedies.

The demurrers are overruled. The court strikes Petitioner’s wholly duplicative second cause of action for declaratory relief as ordered on July 12, 2023.

Petitioner is a Custody Assistant-Sheriff with the Los Angeles County Sheriff’s Department (Department). (SAP ¶ 4.) The Los Angeles County Professional Peace Officers Association (PPOA) is the majority representative of County employees in the Custody Assistant unit. (SAP

“On or about February 19, 2019, the County and the PPOA entered into a collective bargaining agreement referred to as the Memorandum of Understanding (‘MOU’).” (SAP ¶ 9, Exh. A.) “Upon written notice of the grievance decision, an employee is afforded the right to pursue arbitration, as described in Article 11, section 6 of the MOU. . . . However, this right mandates that the employee associate with the union. If the employee does not associate with the union, the employee will not be afforded an appeal.” (SAP ¶ 13.) “Respondents do not provide any alternate evidentiary type hearing for its employees that exercise their right not to join or associate with the PPOA.” (SAP ¶ 17.)

“On or about May 17, 2022, Petitioner received a Letter of Intent from [the Department] indicat[ing] that she would be suspended for five (5) working days without pay for allegedly violating the Policy of Equality. One witness allegedly heard Petitioner make inappropriate comments at work. Based on information and belief, that sole witness was subsequently terminated by [the Department]. Based on information and belief, that witness is unreliable and has provided conflicting statements about Petitioner.” (SAP ¶ 21.)

Petitioner initiated a grievance to appeal her proposed suspension. Petitioner met with Department personnel on July 14, 2022, and presented her grievance. On or about August 17, 2022, the Department denied the grievance. (SAP ¶¶ 22-24.)

On August 26, 2022, Petitioner filed a request for arbitration with ERCOM. Petitioner was not a member of PPOA at the time. On August 29, 2022, ERCOM informed Petitioner a request for arbitration may only be filed by a union. (SAP ¶¶ 25-29.)

“On or about September 6, 2022, Petitioner received a Letter of Imposition, which indicated that Petitioner would be suspended without pay from September 19, 2022, through September 23, 2022.” (SAP ¶ 30.)

On or about September 8, 2022, Petitioner “associated” with PPOA and requested that PPOA file a request for arbitration with ERCOM. PPOA submitted the request on September 16, 2022. On or about September 16, 2022, ERCOM granted the request for arbitration. (SAP ¶¶ 31-32, 38.) “The Request for Arbitration, a public record, supports the fact that Petitioner had to associate with the PPOA as it states that the PPOA is the requesting party, and the request is being made on behalf of Petitioner.” (SAP ¶ 32.)

On September 30, 2022, Petitioner served a letter on ERCOM stating she “should not be forced to associate any further with the PPOA” and requesting “Petitioner be permitted to have her own representation for the upcoming arbitration.” (SAP ¶ 39.) Despite granting the request for arbitration, ERCOM has not allowed Petitioner to proceed to arbitration with her own choice of legal representation. (SAP ¶ 40.)

On December 5, 2022, Petitioner filed her original petition for writ of mandate and complaint for declaratory and injunctive relief. On May 9, 2023, after Respondents filed demurrers, Petitioner filed her first amended petition for writ of mandate and complaint for declaratory and injunctive relief (FAP).

On June 7 and 12, 2023, respectively, ERCOM and the County filed their demurrers to the FAP and meet and confer declarations. On June 28, 2023, Petitioner filed a consolidated opposition. On July 5, 2023, ERCOM and County each filed a reply.

On July 12, 2023, the court sustained with leave to amend Respondents’ demurrers to the FAP. The court issued a written ruling (Ruling), which is incorporated here by reference. In a footnote, the court stated: “If Petitioner is alleging Respondents have not complied with contractual provisions of the MOU, such legal theory is not sufficiently pleaded in the FAP. If Petitioner intends to allege as much, amendments to the FAP are required.” (Ruling 5, fn. 2.) The court also indicated Petitioner could allege further facts in an amended pleading to support her claim she should not be required to exhaust her administrative remedies before the County’s Director of Personnel. (Ruling 10.)

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc., § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The allegations in the petition must be liberally construed in favor of Petitioner on demurrer. (See Mobil Oil Corp. v Exxon Corp. (1986) 177 Cal.App.3d 942, 947.)

Petitioner brings her request for a writ of mandate pursuant to Code of Civil Procedure 1085.

There are two essential showings required to obtain an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of

Health Services (2007) 148 Cal.App.4th 696, 704.) “An action in ordinary mandamus is proper where . . . the claim is that an agency has failed to act as required by law.” (Id. at 705.)

“Generally, mandamus is available to compel a public agency’s performance or to correct an agency’s abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)

Respondents contend Petitioner has not pleaded a cause of action for a writ of ordinary mandate because: (1) under constitutional due process principles, Petitioner is not entitled to an evidentiary appeal hearing for a suspension of five days or less; (2) Petitioner’s rights under the Meyers-Milias-Brown Act (MMBA), Government Code section 3500 et seq., do not entitle to her to an evidentiary hearing under the facts of this case; (3) ERCOM has no ministerial duty to process a request for arbitration without participation of the union, PPOA; (4) the County has no ministerial duty to contravene the terms of the MOU with PPOA or create an exclusive arbitration procedure for Petitioner; (5) Petitioner has not pleaded a claim for discrimination; and (6) Petitioner failed to exhaust her administrative remedies.

As discussed below, the court need not reach issues (1) through (5) because Petitioner sufficiently pleads she is entitled, pursuant to the MOU, as a matter of contract to an arbitration that has already been requested by PPOA and granted by ERCOM. The court also concludes Petitioner has pleaded sufficient facts to support an excuse from the requirement of exhaustion.

Petitioner Sufficiently Pleads a Claim for Arbitration Pursuant to the Terms of the MOU

“[A]rbitration is a matter of contract . . . .” (Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1440.) A MOU adopted by the governing body of a public agency is a binding agreement that may be enforced against the agency by writ of ordinary mandate. (Glendale City Employees' Association, Inc. v. City of Glendale (1975) 15 Cal. 3d 328, 337-345.)

When interpreting a MOU, courts “are guided by the well-settled rules of interpretation of a contract, endeavoring to effectuate the mutual intent of the parties as it existed at the time of contracting insofar as it is ascertainable and lawful.” (City of El Cajon v. El Cajon Police Officers’ Assn. (1996) 49 Cal.App.4th 64, 71.) Extrinsic evidence may be offered by the parties to resolve ambiguities in the contract, including latent ambiguities. “ ‘The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.’ To determine whether offered evidence is relevant to prove such a meaning the court must consider all credible evidence offered to prove the intention of the parties. ‘If the court decides, after considering this evidence, that the language of a contract, in the light of all the circumstances, ‘is fairly susceptible of either one of the two interpretations contended for . . .’ [citations], extrinsic evidence to prove either of such meanings is admissible.’ ” (Delta Dynamics, Inc. v. Arioto (1968) 69 Cal.2d 525, 528.)

Petitioner contends the court must preliminarily determine whether Petitioner has sufficiently pleaded a ministerial duty requiring Respondents to comply with the MOU once arbitration is granted. The court agrees that is the starting point for the analysis.

In the first cause of action, Petitioner pleads “[t]he ERCOM Ordinance (and the MOU) does not authorize ERCOM or the County to deny Petitioner an attorney for arbitration that has been granted.” (SAP ¶ 65; see also SAP ¶ 73.) Among other writ relief, Petitioner seeks a writ of mandate “directing Respondents to afford Petitioner the right to proceed to the arbitration that ERCOM granted.” (SAP ¶ 94.)

In the SAP, Petitioner pleads facts to support the relief she requests. Petitioner alleges, after initially being denied arbitration on August 30, 2022 when Petitioner was not a member of PPOA, Petitioner then associated with PPOA and requested PPOA file a request for arbitration on her behalf. (SAP ¶¶ 28, 31.) Petitioner next alleges: “Although Petitioner did not join the PPOA, she was forced to associate with the PPOA by asking them to request the arbitration on her behalf. The Request for Arbitration, a public record, supports the fact that Petitioner had to associate with the PPOA as it states that the PPOA is the requesting party, and the request is being made on behalf of Petitioner.” (SAP ¶ 32.) “On or about September 16, 2022, ERCOM granted the Request for Arbitration from the PPOA on behalf of Petitioner.” (SAP ¶ 38.)

Thus, for purposes of this demurrer, the court must assume the truth of the allegation that PPOA made a request for arbitration on behalf of Petitioner and that ERCOM granted the request. Further, since the pleading must be liberally construed, the court also assumes, absent allegations or judicially noticeable materials to the contrary, PPOA has not withdrawn the request for arbitration.

Petitioner also sufficiently alleges a claim that under the MOU she should be permitted to use counsel of her choice for the arbitration in these circumstances. Section 6(1) of the MOU states “an employee, only if he/she is represented by PPOA, may request that the grievance be submitted to arbitration.” (SAP Exh. A-035.) As the court previously ruled on demurrer, the plain language of section 6(1) arguably suggests the employee must be represented in the arbitration by PPOA and counsel selected by PPOA. (Ruling 5.) Petitioner, however, has alleged sufficient facts supporting a different and reasonable interpretation of section 6(1) and the MOU. Specifically, the SAP alleges:

41. The MOU, Ex. A, does not restrict Petitioner from proceeding to arbitration with her own attorney at her own expense. This is supported by the PPOA’s interpretation of the policy, which allows Petitioner to proceed to arbitration on her own. PPOA’s policy states, the “Policy Governing Legal Service/Representation of Individuals” requires non-members to proceed to arbitration at their own cost. The Policy states:

In those rare circumstances in which access to arbitration by an employee in a unit exclusively represented by PPOA is exclusively controlled by PPOA and if, as a result, PPOA is the sole party which may commence a petition to compel arbitration, PPOA may, subject to the approval procedures set forth above, provide this additional assistance to members and agency fee payers on the same bases without regard to membership status. Once such access to arbitration is achieved, PPOA will provide no additional assistance to nonmembers, including agency fee payers, and such nonmembers must proceed entirely at their own cost. [[1]]

42. In fact, ERCOM shared a similar understanding of the MOU, that the MOU does not provide that Petitioner’s grievance must exclusively and solely be represented by the union during and throughout the arbitration process. ERCOM has stated in the past that all that is required is for Petitioner to comply with the procedural mechanisms for submitting and initiating the arbitration proceeding, which Petitioner has done.

43. Additionally, in the case of Binh Van Du v. Los Angeles County Employee Relations Commission (LASC Case No. 20STCP00562), ERCOM conceded that after a request for arbitration was granted, the employee could proceed with the counsel of his choice.

44. Van Du involved an LASD Deputy Sheriff (Van Du) who sought to request arbitration through his own attorney, instead of going through ALADS. Van Du did not have ALADS complete the request for arbitration, and thus, his request was denied by ERCOM. Van Du then filed a writ of mandate for the procedural denial of the request for arbitration.

45. During the litigation, ERCOM conceded that, “Respondent [ERCOM] is not arguing–nor does the MOU provide–that Petitioner’s [Van Du’s] grievance may exclusively and solely be represented by ALADS during and throughout the arbitration proceeding. Again, all that is required is for Petitioner to comply with the procedural mechanisms for submitting and initiating the arbitration proceeding.”

46. ERCOM was correct. With the exception of the union names (ALADS and PPOA) the arbitration sections of the two MOUs are identical. For example, the MOU for ALADS states in relevant part: “Within ten (10) business days from the receipt of the written decision of the department head or his designated representative, an employee, only if he/she is represented by ALADS, may request that the grievance be submitted to arbitration as provided for hereinafter.”

47. The identical (except for the union name) PPOA MOU section states: “Within ten (10) business days from the receipt of the written decision of the department head, or his designated representative, an employee, only if he/she is represented by PPOA, may request that the grievance be submitted to arbitration as provided for hereinafter.”

48. Specifically, neither the ALADS MOU nor the identical PPOA MOU require that the union represent the employee throughout the arbitration process. Both MOU’s [sic] merely require the union to make the initial request. Both MOU’s [sic] allow an employee to proceed with her own representation.

Petitioner’s interpretation of section 6(1) of the MOU, as pleaded in the SAP, shows an ambiguity in the MOU that cannot be resolved at the pleading stage. Section 6(1) states that an employee may request that a grievance be submitted to arbitration “only if he/she is represented by PPOA.” That provision could mean that the employee must be represented by PPOA and its attorneys both when requesting the arbitration and throughout the arbitration. However, it could also be reasonably interpreted that PPOA need only represent the employee when the request for arbitration is made. Section 6(1) does not necessarily address whether the employee must be represented by counsel for PPOA during the conduct of the arbitration. The remaining provisions of section 6 of the MOU also do not necessarily address that issue of representation during the conduct of the arbitration. To the extent section 6(3) through (7) could be interpreted to suggest PPOA will usually participate in the arbitration and represent the employee, the court finds a latent ambiguity that cannot be resolved on demurrer based on Petitioner’s extrinsic evidence discussed below. (See SAP Exh. A-038-039.)

Thus, section 6(1) and the MOU are ambiguous as to whether Petitioner may be represented by counsel of her choice during the arbitration. In ruling on a demurrer without the benefit of extrinsic evidence, the court may not construe an ambiguous contract “in a manner contrary to the plaintiff's interpretation as alleged in the complaint.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115.)

Furthermore, Petitioner has pleaded extrinsic evidence in the SAP that, for purposes of demurrer, shows an ambiguity in the MOU as applied to this case. “The test of admissibility of extrinsic evidence to explain the meaning of a written instrument is not whether it appears to the court to be plain and unambiguous on its face, but whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.” (Delta Dynamics, Inc. v. Arioto (1968) 69 Cal.2d 525, 528.)

Here, Petitioner alleges PPOA’s Policy Governing Legal Service/Representation of Individuals states, if a request for arbitration is made and granted for nonmembers, “PPOA will provide no additional assistance to nonmembers, including agency fee payers, and such nonmembers must proceed entirely at their own cost.” (SAP ¶ 41.) That policy suggests nonmembers may be permitted by PPOA and the MOU to proceed to arbitration with their own attorneys and at their own cost. Petitioner also pleads “ERCOM has stated in the past that all that is required is for Petitioner to comply with the procedural mechanisms for submitting and initiating the arbitration proceeding, which Petitioner has done.” (SAP ¶ 42.) The court must assume the truth of that allegation for purposes of demurrer. Finally, Petitioner has alleged the relevant arbitration provisions of the PPOA and ALADS MOUs are “identical.” (SAP ¶¶ 46-47.) Given that allegation, ERCOM’s statement in Binh Van Du v. Los Angeles County Employee Relations Commission that the employee did not need to be “exclusively and solely represented by ALADS during and throughout the arbitration” is relevant extrinsic evidence of how section 6(1) and its “identical” counterpart in the ALADS MOU have been interpreted in practice by ERCOM. (SAP ¶¶ 43-48.) The court must allow Petitioner the opportunity to present this and other extrinsic evidence at trial to prove up an ambiguity about the meaning of the MOU. (Fremont Indemnity Co. v. Fremont General Corp., supra, 148 Cal.App.4th at 115.)

Further, Respondents have not cited any extrinsic evidence to support their interpretations of the MOU—Petitioner must be represented by PPOA and PPOA counsel throughout the arbitration once a request for arbitration is made and granted.

The County contends Binh Van Du v. Los Angeles County Employee Relations Commission is irrelevant because it “involves a different union, a different MOU, and different facts” and also because it involved a deputy sheriff with certain statutory rights under the Government Code. In reply, ERCOM contends Petitioner cites legal argument made in the case, which is not a judicial admission. Given the new allegations in the SAP regarding Binh Van Du v. Los Angeles County Employee Relations Commission (see SAP ¶¶ 43-48), which the court must accept as true on demurrer, Respondents arguments are not persuasive.

Petitioner pleads the relevant arbitration provisions are “identical.” Thus, it is not dispositive that ERCOM’s alleged admission was made with respect to a different union or different MOU. Whether ERCOM’s alleged interpretation of the ALADS MOU constitutes a binding judicial admission the court need not decide today. ERCOM’s alleged statements are relevant extrinsic evidence of how a MOU provision identical to section 6(1) has been interpreted by ERCOM as a matter of practice. Further, there are no statements in the SAP or judicially noticed materials suggesting ERCOM’s interpretation of the ALADS MOU was based on the employee being a deputy sheriff.

In its demurrer, the County does not otherwise address Petitioner’s allegations summarized above that, as a matter of contract, Petitioner is entitled to be represented by her own attorney “for arbitration that has been granted.” (SAP ¶ 65; see also SAP ¶¶ 41-48.) The County dismisses paragraphs 41-48 of the MOU as “argument and contentions – not facts – about the Parties’ interpretation of the PPOA MOU [and] the unrelated Binh Van Du v. Los Angeles County Employee Relations Commission case.” (County Memo 11:5-8.) However, as discussed above, paragraphs 41-48 of the SAP plead extrinsic evidence that is relevant to Petitioner’s interpretation of the MOU. Those allegations are factual in nature and relevant to a pleading challenge. Therefore, the County’s failure to address such relevant factual allegations supports overruling the demurrer.

ERCOM appears to address Petitioner’s new allegations when it argues “ERCOM has no authority to contravene the terms of the MOU” and “[t]he terms of the MOU indicate that it is the union, PPOA, which has the power to represent Petitioner at an arbitration.” (ERCOM Memo 17:3-5.) ERCOM contends the MOU (at section 6(1)) contemplates that PPOA will, itself or through its own attorneys, represent the employee in the arbitration. (ERCOM Memo 18:2-5.) ERCOM notes PPOA “would have to relinquish that right to represent its members under the MOU.” (ERCOM Memo 18:6.) While ERCOM asserts a plausible interpretation of section 6(1) of the MOU, it does not cite any extrinsic evidence to support its position. Under the circumstances here, the parties’ interpretation dispute is not properly resolved on demurrer. (Fremont Indemnity Co. v. Fremont General Corp., supra, 148 Cal.App.4th at 115.)

In reply, the County argues: “Petitioner’s gamesmanship in associating with PPOA only to file a request for arbitration, and immediately divesting from PPOA upon ERCOM’s granting of the arbitration request, does not provide her any ‘right’ to proceed to arbitration.” (ERCOM Reply 5:9-12.) The County did not raise this argument in the demurrer, and it does not show good cause to raise the argument for the first time in reply. Petitioner has had not a full and fair opportunity to respond to it. The court rejects the argument on that basis. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010 [“points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before”.)

Even if the court considered the County’s tardy argument, it is not fully developed and is unpersuasive at the pleading stage. Petitioner admits she did not join PPOA and that PPOA nonetheless made a request for arbitration on her behalf after she “associated” with PPOA. (SAP ¶ 32.) The SAP does not allege PPOA has withdrawn the request for arbitration, and the County does not cite any judicially noticeable records showing that PPOA withdrew the request. The County cites no authority suggesting Petitioner association with PPOA for the purpose of filing the request for arbitration with her disassociation thereafter was improper. As discussed, Petitioner has pleaded a plausible interpretation of the MOU under which Respondents have a ministerial duty to proceed with arbitration in these circumstances. The County’s reply argument raises factual and legal issues that cannot be resolved at the pleading stage.

In reply, ERCOM asserts “Petitioner has yet to allege there is even an arbitrable dispute under the MOU.” (ERCOM Reply 3:17-18.) This argument was not raised in either demurrer. Like the County, ERCOM does not show good cause to raise its argument for the first time in reply. The court therefore rejects the argument on that basis. (Balboa Ins. Co. v. Aguirre, supra, 149 Cal.App.3d at 1010.) Further, ERCOM does not cite any allegations from the SAP or attached exhibits from which it can be determined on the face of the pleading that Petitioner’s grievance is not arbitrable.

Based on the foregoing, Petitioner has sufficiently pleaded Respondents have a ministerial duty to proceed with arbitration pursuant to the terms of the MOU. “A demurrer must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) Accordingly, the court need not reach the parties’ contentions as to the other claims asserted against the first cause of action. Respondents are not precluded from raising all available defenses and arguments at the trial on the writ petition.

Respondents contend Petitioner has failed to plead exhaustion of administrative remedies because Petitioner admittedly did not pursue an appeal of her suspension before the Director of Personnel.

Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1489.) “The exhaustion requirement applies whether relief is sought by traditional (Code Civ. Proc., § 1085) or administrative (Code Civ. Proc., § 1094.5) mandamus.” (Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 Cal.App.4th 503, 511.)

“Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520 [emphasis added].) “The exhaustion doctrine precludes review of an intermediate or interlocutory action of an administrative agency. A party must proceed through the full administrative process ‘to a final decision on the merits.” (Alta Loma School Dist. v. San Bernardino County Com. On School District Reorganization (1981) 124 Cal.App.3d 542, 554.)

There are exceptions to the exhaustion requirement, including “when the subject of the controversy lies outside the administrative agency's jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the administrative agency cannot grant an adequate remedy, and when the aggrieved party can positively state what the administrative agency's decision in his particular case would be.” (Edgren v. Regents of University of California, supra, 158 Cal.App.3d at 520 [citations omitted].)

Here, Petitioner amended the SAP to clearly allege Petitioner has a contractual right to arbitration and Respondents have a ministerial duty to provide such arbitration and allow Petitioner to be represented by her own counsel. (SAP ¶¶ 65, 73.) Petitioner also amended the SAP to allege “the appeal to the Director of Personnel is not a required administrative remedy with the County before arbitration. . . . The Rule 18.01 appeal does not provide for a remedy for the procedural denials at issue, nor does the County have any other type of administrative remedy available for the procedural denials at issue.” (SAP ¶¶ 36-37.)

Given the amended allegations, Petitioner has sufficiently alleged the Director of Personnel lacks authority pursuant to Rule 18.01 to consider or grant Petitioner’s request for arbitration pursuant to the MOU. Petitioner has also sufficiently alleged the “the subject of the controversy lies outside the administrative agency's jurisdiction” and “the administrative agency cannot grant an adequate remedy.” (Edgren v. Regents of University of California, supra, 158 Cal.App.3d at 520.) Because Petitioner has alleged these excuses from exhaustion, the court need not consider whether Petitioner has sufficiently alleged the futility exception as well.

Petitioner has sufficiently pleaded excuses from the exhaustion requirement with respect to the administrative appeal pursuant to Rule 18.01.

The court sustained the prior demurrer to the second cause of action, without leave to amend, because it is entirely duplicative of the writ cause of action. Thus, Petitioner should not have included the second cause of action for declaratory and injunctive relief in the SAP. Since this cause of action was not authorized by the court and remains entirely duplicative of the writ cause of action, the demurrer to the second cause of action is sustained without leave to amend.

[1] Although Petitioner included PPOA’s policy in the FAP, Petitioner did not sufficiently plead a contract theory from the policy as support for her claim for a writ of mandate. (See FAP ¶ 36.) Petitioner has now amended her pleading with a contractual basis supporting writ relief.