Judge: Salvatore Sirna, Case: 23PSCV01053, Date: 2023-08-29 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV01053    Hearing Date: March 19, 2024    Dept: G

Defendant Mt. San Antonio Community College District’s Demurrer to Plaintiff’s First Amended Complaint

Respondent: Plaintiff Allison Oliver

Defendant Mt. San Antonio Community College District’s Motion to Strike Portions of Plaintiff’s First Amended Complaint

Respondent: Plaintiff Allison Oliver

TENTATIVE RULING

Defendant Mt. San Antonio Community College District’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED without leave to amend.

Defendant Mt. San Antonio Community College District’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is DEEMED MOOT.

BACKGROUND

This is an employment discrimination action. In the summer of 2016, Defendant Mt. San Antonio Community College District (Mt. SAC) hired Plaintiff Allison Oliver as a professor in its kinesiology department with an option for a tenured position after four years. Oliver also served as Mt. SAC’s head volleyball coach. In September 2019, Oliver’s union representative informed Oliver that Mt. SAC had received several complaints from student athletes that claimed Oliver had used curse words around volleyball players. In a meeting with human resources representatives and Oliver’s tenure committee, Mt. SAC’s athletic director, Joe Jennum, told Oliver that Oliver could not use curse words in front of student athletes. When Oliver’s union representative inquired if that requirement also applied to other male coaches who used similar language, Jennum allegedly stated that the ban on curse words only applied to Oliver.

In October 2019, Oliver attended another meeting with union representatives where they informed Oliver that student athlete questionnaire responses had corroborated the allegations that Oliver had used curse words. In the same month, Mt. SAC placed Oliver on involuntary paid administrative leave for the remainder of the fall semester. On December 11, 2019, Oliver’s tenure committee held a final vote that recommended Oliver not receive tenure. In February 2020, Oliver’s counsel contacted Mt. SAC twice to inform them that the student athlete complaints were the likely result of gender stereotyping and bias. Nonetheless, Mt. SAC President William Scroggins recommended denying tenure for Oliver and on February 26, 2020, Mt. SAC’s Board of Trustees adopted Scroggins’ recommendation. As a result, Oliver’s employment contract with Mt. SAC expired on June 30, 2020, and was not renewed.

On April 11, 2023, Oliver filed a complaint against Mt. SAC as a college and a district as well as Does 1-50, alleging the following causes of action: (1) gender discrimination, (2) retaliation, (3) failure to prevent discrimination, (4) failure to conduct adequate investigation, (5) wrongful termination in violation of public policy, (6) intentional infliction of emotional distress (IIED), and (7) negligent infliction of emotional distress (NIED). On August 29, the court sustained Mt. SAC’s demurrer to the complaint with leave to amend as to the first five causes of action and without leave to amend as to the last two.

On September 8, 2023, Oliver filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action minus the sixth and seventh.

On October 6, 2023, Mt. SAC filed the present demurrer and motion to strike. Prior to filing on September 29, Mt. SAC’s counsel met and conferred telephonically with Oliver’s counsel and was unable to reach a resolution. (Kostrenich Decl., ¶ 3.) On November 15, the court continued the hearing on Mt. SAC’s demurrer and motion to strike for parties to further brief issues of split authority, issue/claim preclusion, and emotional damages. On February 2, 2024, the court granted another continuance for parties to file further supplemental briefing.

A hearing on the demurrer and motion to strike is set for March 19, 2024, along with a case management conference.

REQUESTS FOR JUDICIAL NOTICE

Mt. SAC requests judicial notice of an arbitration decision involving Oliver’s claims. The court GRANTS Mt. SAC’s request pursuant to Evidence Code section 452, subdivision (d). (See Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 525 [noting trial court properly took judicial notice of an arbitration award].) Oliver’s request for judicial notice of this court’s ruling on Mt. SAC’s previous demurrer is also GRANTED.

ANALYSIS

Mt. SAC demurs to Oliver’s entire FAC on the grounds that Oliver failed to exhaust judicial remedies before filing the present action. For the following reasons, the court SUSTAINS Mt. SAC’s demurrer.

Legal Standard

Demurrer

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

Exhaustion of Judicial Remedies

“[U]nless a party to a quasi-judicial proceeding challenges the agency's adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70 (Johnson).) “The concept of exhaustion of judicial remedies is rooted in the principles embodied in collateral estoppel. The two are integrally intertwined.” (California Public Employees’ Retirement System v. Superior Court (2008) 160 Cal.App.4th 174, 180.) For a decision in a quasi-judicial proceeding to have issue preclusive effect, “it and its prior proceedings must possess a judicial character. [Citation.] Indicia of proceedings undertaken in a judicial capacity include a hearing before an impartial decision maker; testimony given under oath or affirmation; a party’s ability to subpoena, call, examine, and cross-examine witnesses, to introduce documentary evidence, and to make oral and written argument; the taking of a record of the proceeding; and a written statement of reasons for the decision.” (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 944.)

Discussion

Mt. SAC argues the operative issue here is the legal effect of Oliver’s failure to exhaust judicial remedies and overturn an adverse arbitration ruling. From July 2021 to February 2022, Oliver, Oliver’s faculty association, and Mt. SAC participated in an arbitration proceeding pursuant to a collective bargaining agreement (CBA). (FAC, ¶ 105; RJN, Ex. 1.) At the conclusion of the arbitration, the arbitrator found Mt. SAC’s decision to deny Oliver tenure was reasonable. (FAC, ¶ 105; RJN, Ex. 1, p. 99.) Mt. SAC’s board then denied Oliver’s appeal of the arbitrator’s decision. (FAC, ¶ 106.)

In the arbitration proceeding at issue, the CBA requires both parties to agree on the selection of an arbitrator. (FAC, Ex. 3, ¶ 18.I.7.b.2.b.) If the parties cannot agree, the CBA provides for the appointment of an arbitrator from the State Conciliation Service. (FAC, Ex. 3, ¶ 18.I.7.b.2.b.) The arbitration proceedings involved five hearings conducted remotely over Zoom with Oliver being represented by counsel. (RJN, Ex. 1, p. 1-2.) Both sides were also offered a full opportunity to call witnesses, introduce documentary evidence, and submit briefs. (RJN, Ex. 1, p. 1-2.) Based on these facts, the court finds the arbitration proceeding was sufficiently judicial in character to trigger the requirement to exhaust judicial remedies. Once Oliver received a final arbitration decision on Oliver’s grievance, Education Code section 87611 allowed Oliver to seek judicial review of the decision pursuant to Code of Civil Procedure section 1094.5. The FAC fails to allege Oliver sought such review. Thus, by failing to set aside the arbitrator’s determination that the denial of tenure was reasonable, Oliver is now bound by that determination.

In Johnson, our supreme court held that when “a public employee pursues administrative civil service remedies, receives an adverse finding, and fails to have the finding set aside through judicial review procedures, the adverse finding is binding on discrimination claims under the FEHA.” (See Johnson, supra, 24 Cal.4th at p. 76.) In Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477 (Castillo), the court held an administrative finding that an employee’s discharge was not wrongful prevented the subsequent litigation of that issue through a FEHA discrimination claim. (Id., at p. 486.) And in Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825 (Wassmann), the court held that “[b]ecause the administrative law judge in this case, as his counterpart in Castillo, found there was cause to dismiss, the judge necessarily found that her dismissal was for proper reasons and not wrongful.” (Id., at p. 849.) Based on these authorities, the arbitrator’s unchallenged findings regarding Mt. SAC’s decision to deny tenure prevent Oliver from asserting that Mt. SAC’s denial of tenure violated public policy and FEHA in a separate action.

In opposition, Oliver argues FEHA issues were never raised or litigated in the prior arbitration proceeding. In fact, Oliver argues that Oliver and Mt. SAC actually agreed not to address or litigate FEHA claims in the arbitration proceeding. But Oliver’s argument fails as it is based on a misunderstanding of the “issue” here, which is the alleged wrongfulness of Mt. SAC’s decision to deny Oliver tenure. Like Oliver, the plaintiff in Castillo made the same argument. In Castillo, the plaintiff argued that Castillo’s discrimination claims were not litigated or raised in the administrative proceedings that addressed whether the City of Los Angeles had good cause to fire the plaintiff. (Castillo, supra, 92 Cal.App.4th at p. 479, 482.) The court rejected that argument, noting the issue was whether the City of Los Angeles’s discharge of the plaintiff was wrongful. (Id., at p. 481, 486.) After considering evidence that the plaintiff had unsatisfactory attendance and failed to improve, the hearing officer in the administrative proceeding found the Castillo plaintiff’s termination was appropriate. (Id., at p. 482.) While the Castillo plaintiff failed to raise the discrimination claims in arguing the termination was wrongful, the court held that was not dispositive as the Castillo plaintiff failed to show plaintiff was prevented from introducing evidence of such discrimination. (Ibid.) Ultimately, the Castillo court held a finding that the plaintiff’s termination was not wrongful prevented the plaintiff from bringing a separate FEHA action “[b]ecause he cannot prove wrongfulness of discharge, which is an element of his [FEHA] causes of action.” (Id., at p. 487.)

The Wassmann plaintiff also failed to raise discrimination and harassment claims in an administrative proceeding to determine if a community college had good cause to fire the plaintiff. (Wassmann, supra, 24 Cal.App.5th at p. 847.) In relying on Castillo, the Wassmann court noted that the plaintiff was not prevented from demonstrating that the community college’s grounds for termination were a pretext for discrimination. (Id., at p. 849.) And as in Castillo, the court held that “[b]ecause the hearing examiner had found the plaintiff's dismissal was appropriate, the examiner necessarily found the dismissal was for proper reasons and not a pretext for discrimination.” (Id., at p. 849.)

Here, Oliver failed to demonstrate why this court should deviate from and ignore this controlling authority. While the arbitrator did not address Oliver’s FEHA and wrongful termination claims, Oliver has not shown how Oliver was prevented from bringing such claims. In fact, the CBA appears to allow such claims as it states “[t]he arbitrator in no case shall make any recommendation inconsistent with District duties, responsibilities, or obligations as such are prescribed in State or federal law.” (FAC, Ex. 3, ¶ 18.I.7.b.2.d.) Because an arbitrator cannot issue a decision that would be inconsistent with Mt. SAC’s duties pursuant to state law, which would include FEHA and wrongful discharges in violation public policy, Oliver could have argued that the denial of tenure was inappropriate because it violated state law. And even if Oliver did agree not to raise these issues in the arbitration, that fact is of no legal consequence. To allow parties to reserve issues or legal theories for future litigation is directly contrary to and would fundamentally undermine the doctrine of issue preclusion.

Furthermore, as noted in Castillo and Wassmann, the Oliver-Mt. SAC arbitration and the present action do involve the same issue. Here, the arbitrator specifically found that Mt. SAC’s decision to deny tenure was reasonable. (RJN, Ex. 1, p. 99.) In finding so, the arbitrator noted that Oliver had issues with the treatment of players on Oliver’s volleyball teams and failed to address these issues. (RJN, Ex. 1, p. 97.) The arbitrator found Oliver’s failure to address these issues and meet Mt. SAC’s legitimate expectations provided reasonable grounds for Mt. SAC to deny tenure. (RJN, Ex. 1, p. 97-98.) Thus, by finding Mt. SAC’s denial of tenure was reasonable, the arbitrator also necessarily found that the denial of tenure was not wrongful. As Castillo and Wassmann both hold, this finding now bars Oliver from arguing the denial was wrongful for other reasons. (Castillo, supra, 92 Cal.App.4th at p. 487; Wassmann, supra, 24 Cal.App.5th at p. 849.)

In the second round of supplemental briefing, Oliver argues that the primary rights at issue in the arbitration were distinct from the present case as they involved contractual rights rather than statutory rights. But in rejecting similar arguments by the plaintiff in Castillo, the court noted primary rights are relevant to determining the scope of a cause of action and have “no bearing on whether a party should be allowed to relitigate an issue.” (Castillo, supra, 92 Cal.App.4th at p. 486.)

Oliver also argues prior arbitration does not preclude Oliver’s FEHA claims as the CBA did not require arbitration of FEHA claims. In support of this argument, Oliver relies on Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073 (Ortega) and Camargo v. California Portland Cement Co. (2001) 86 Cal.App.4th 995 (Camargo). But both cases are distinguishable from the case at bar. In Camargo, the court held “that if the FEHA claims of a union member are to be finally resolved by arbitration (with the concomitant loss of a jury of one's peers), the agreement to do so in a CBA must be ‘clear and unmistakable.’” (Id., at p. 1018.) The court also held that “the procedures of the arbitration must allow for the full litigation and fair adjudication of the FEHA claim.” (Ibid.) But unlike the present case, Camargo did not involve a public employee pursuing administrative civil service remedies.

In Ortega, the court applied Camargo to a more factually similar case where a community college football coach was challenging a demotion and termination. (Ortega, supra, 156 Cal.App.4th at p. 1076.) There, the court distinguished Johnson and its progeny on the grounds that those cases involved statutory civil service remedies while the plaintiff in Ortega had internal remedies that were provided by a CBA. (Id., at p. 1083.) But this distinction alone is problematic. As noted in Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, “[t]he Education Code sets forth due process rights granted to community college faculty members in disciplinary matters, including the right to notice, opportunity to object, a hearing before an arbitrator or administrative law judge, and a decision by the governing board.” (Id., at p. 1492.)

In particular, Education Code section 87610.1, subdivision (b) sets forth the following requirements for resolution of grievances:

“Allegations that the community college district, in a decision to grant tenure, made a negative decision that to a reasonable person was unreasonable, or violated, misinterpreted, or misapplied, any of its policies and procedures concerning the evaluation of probationary employees shall be classified and procedurally addressed as grievances. Allegations that the community college district in a decision to reappoint a probationary employee violated, misinterpreted, or misapplied any of its policies and procedures concerning the evaluation of probationary employees shall be classified and procedurally addressed as grievances. If there is no contractual grievance procedure resulting in arbitration, these allegations shall proceed to hearing in accordance with Section 87740.” (Educ. Code, § 87610.1, subd. (b).)

Additionally, “A final decision reached following a grievance or hearing conducted pursuant to subdivision (b) of Section 87610.1 shall be subject to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.” (Educ. Code, § 87611.) Thus, while the present case does involve a CBA, it cannot be distinguished from Johnson as the CBA is incorporated into Oliver’s statutory civil service remedies pursuant to the Education Code.

Furthermore, Ortega also distinguishes itself from Johnson and its progeny on the grounds that “none of those decisions involved a public employee subject to a CBA that vested control in the union over the fact-finding component of the grievance procedure.” (Ortega, supra, 156 Cal.App.4th at p. 1085-1086.) The court in Ortega put particular weight on the fact that the CBA in that case only allowed the union and not the plaintiff to call a fact-finding panel to address the plaintiff’s grievance. (Id., at p. 1086.) But unlike the CBA in Ortega, the CBA in the present action allows the employee the option of submitting a grievance to arbitration on their own. (FAC, Ex. 3, ¶ 18.I.7.b.2.a.)

Oliver next argues that allowing an arbitration ruling to preclude FEHA claims is contrary to well established policy and violates Oliver’s right to due process. Oliver claims “employees who are subject to adverse employment actions would be forced to choose between either contesting whether the employment action was consistent with the terms of their CBA and, by doing so, forfeit their right to adjudicate their FEHA rights before a jury, or forego their right to challenge whether the employment action complied with their CBA so they can maintain their right to have a jury hear their FEHA claims.” (Oliver’s 2nd Suppl. Brief, p. 11:1-6.) In response, Mt. SAC argues Article 20.B.5 of the CBA allows a grievant to pursue judicial action as an alternative to arbitration. (Mt. SAC’s 2nd Suppl. Brief, p. 3:26-4:3.)

But here and in oral argument, Mt. SAC cited to Article 20 and did not reference Article 18.  The court notes that the subject CBA contains two separate grievance procedures. In Article 20, the CBA provides general grievance procedures. In Article 18.I.7, the CBA provides specific grievance procedures for probationary faculty members who have been “denied reappointment or tenure” by Mt. SAC.  (FAC, Ex. 3, ¶ 18.I.7.a)  Because Oliver was a probationary faculty member who was appealing Mt. SAC decision to deny tenure and not to rehire Oliver, the provisions of Article 18.I.7 apply. Furthermore, the arbitration decision specifically references the provisions of Article 18.I.7 and does not reference Article 20. (RJN, Ex. 1, p. 60-61.) Article 18.I.7 does not appear to include the same judicial action option as Article 20 and instead states that the Article 18.I.7 procedure is the “sole and final remedy for any claimed breach of this Agreement which is covered by the grievance procedure.” (FAC, Ex. 3, ¶ 18.I.7.b.2.d.)

Nonetheless, the court finds that requiring Oliver to choose between arbitration of grievances and FEHA claims or bringing a FEHA action without CBA violation claims does not violate public policy or due process. In fact, to avoid the “procedural minefield” of litigation “and to achieve the ‘benefits of judicial economy, agency expertise, and potential for swift resolution of grievances,’ public employees may choose what forum is most appropriate to their situation.” (Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1142, quoting Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1088-1089.) Furthermore, the Castillo court held policy interests, including integrity of the judicial system, judicial economy, and protecting parties from vexatious litigation actually favor the application of issue preclusion in these types of cases. (See Castillo, supra, 92 Cal.App.4th at p. 483-484.)

Finally, Oliver argues these issues cannot be properly considered at the pleading stage. The court disagrees as the court need not look beyond the four corners of the complaint and the arbitration decision of which it took judicial notice. Because the decision in the arbitration and Oliver’s FAC both deal with the issue of whether Mt. SAC’s decision to deny tenure was wrongful, the court determines that Oliver’s action is precluded as a matter of law. Additionally, other courts have resolved this issue at the same procedural place in litigation. (See, e.g., Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1382-1383 [holding trial court properly sustained demurrer where wrongful termination action was collaterally estopped by prior administrative adjudication]; Page, supra, 123 Cal.App.4th at p. 1138, 1143 [holding trial court properly sustained demurrer where FEHA violations were estopped by failure to exhaust judicial remedies].)

Accordingly, the court finds that Oliver’s failure to set aside the adverse arbitration decision on the reasonableness of Mt. SAC’s decision to deny tenure is fatal to Oliver’s causes of action.  Therefore, Mt. SAC’s demurrer is SUSTAINED without leave to amend.

CONCLUSION

Based on the foregoing, Mt. SAC’s demurrer to Oliver’s FAC is SUSTAINED without leave to amend.

Furthermore, Mt. SAC’s motion to strike portions of Oliver’s FAC is DEEMED MOOT.