Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2007-00066230-CU-WT-CTL Timothy Taylor, Judge.
O'ROURKE, J.
Marvin Calderon appeals a grant of summary adjudication in favor of his former employer, the City of San Diego (City), contending that the trial court erred in ruling that he was barred relief under Title 42 United States Code, section 1983 (section 1983) because he failed to exhaust judicial remedies.
Section 1983 states: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Section 1983 claims may be brought in either state or federal court. (Williams v. Horvath (1976) 16 Cal.3d 834, 837.)
BACKGROUND
Calderon was employed as a utility worker with City's Park and Recreation Department from 1987 until 2006. He was terminated because he used profanity and a threatening tone and body language to a vehicle driver who had entered his work zone in front of an elementary school, and because he was not truthful about his conduct during an internal investigation.
In May 2006, a City official issued an "Advance Notice of Termination" recommending Calderon's termination. Calderon appealed that decision and in August 2006, participated in a hearing afforded to public employees as set forth in Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly). Afterwards, the hearing officer upheld the recommendation to terminate Calderon in a statement outlining the factual basis of his findings. The hearing officer stated that after the August hearing, he spoke by telephone with a citizen complainant regarding Calderon's use of profanity near children in a playground, and also spoke to another City worker who confirmed the account of the incident attributed to him at the hearing. The hearing officer also detailed post-hearing information he had obtained from a telephone conversation with a bus driver who overheard Calderon's use of profanity during the incident. On September 21, 2006, City issued a notice of termination, giving Calderon five days from receipt of the notice to appeal the decision to the Civil Service Commission.
On October 2, 2006, Calderon's attorney wrote a letter to City's assistant personnel director seeking a time extension for filing the appeal, or alternatively requesting that his letter be regarded as a request for an appeal of the termination decision.
On January 18, 2007, City's assistant personnel director replied to Calderon's attorney, stating, "Please be advised that your appeal to the Commission on Mr. Calderon's behalf was timely and may proceed if that is still your and Mr. Calderon's intentions."
In February 2007, Calderon's attorney replied that Calderon would not proceed with an appeal of the termination to the Civil Service Commission.
In July 2007, Calderon sued City, alleging causes of action for (1) national origin discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et. seq.); (2) wrongful termination in violation of public policy based on FEHA; (3) deprivation of civil rights under section 1983; (4) negligent infliction of emotional distress and (5) intentional infliction of emotional distress.
City moved for summary judgment or in the alternative summary adjudication, arguing as an affirmative defense that Calderon could not make out a prima facie case regarding his FEHA causes of action because he was terminated for a legitimate business reason, and the section 1983 claim failed as a matter of law because he did not seek judicial review of the termination by administrative mandamus.
In opposing summary judgment, Calderon abandoned his FEHA causes of action. He defended only his section 1983 claim, on grounds he was denied due process because he had not received adequate notice and a fair opportunity to respond to the hearing officer's post-hearing investigation. Calderon argued he was not required to obtain a writ of mandate before challenging the hearing officer's decision.
The trial court summarily adjudicated the first and second causes of action under Code of Civil Procedure section 437c, subdivision (f). As to the section 1983 cause of action, the trial court ruled Calderon had failed to exhaust his judicial remedies, adding: "The [cause of action] is a stand alone claim that has nothing to do with the FEHA or FEHA related claim[s].... Even if it were a FEHA related claim, it does not have any preclusive effect on the FEHA claim. As such, the [section] 1983 claim is not exempted from the internal exhaustion requirement simply because it has been joined with a FEHA claim."
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Calderon does not challenge the trial court's summary adjudication of his FEHA causes of action; accordingly, we affirm that portion of the judgment.
DISCUSSION
I. Standard of Review
A defendant moving for summary judgment or summary adjudication must show either (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) When the motion is based on the assertion of an affirmative defense, the defendant has the initial burden to demonstrate that undisputed facts support each element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does 'the burden shift[ ] to plaintiff to show an issue of fact concerning at least one element of the defense.' " (Id. at pp. 289-290.)
On appeal, we independently review the parties' supporting and opposing papers and apply the same standard as the trial court to determine whether there exists a triable issue of material fact. (Guz, supra, 24 Cal.4th at p. 334; Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 723.) We liberally construe the evidence in support of the party opposing summary judgment (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142), and assess whether the evidence would, if credited, permit the trier of fact to find in favor of the party opposing summary judgment under the applicable legal standards. (Cf. Aguilar, supra, 25 Cal.4th at p. 850.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in favor of the party opposing the motion, and we must deny the motion when there is some evidence that, if believed, would support judgment in favor of the nonmoving party. (Id. at p. 856.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.)
II. Applicable Law
In English v. City of Long Beach (1950) 35 Cal.2d 155, 159-160, the California Supreme court held, "[T]he right of a hearing before an administrative tribunal would be meaningless if the tribunal were permitted to base its determination upon information received without knowledge of the parties.... A hearing requires that the party be apprised of the evidence against him so that he may have an opportunity to refute, test, and explain it, and the requirement of a hearing necessarily contemplates a decision in light of the evidence there introduced." (Id. at p. 159.)
In Patsy v. Florida Board of Regents (1982) 457 U.S. 496 (Patsy), the United States Supreme Court held, based on section 1983's legislative history, that "exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to [section] 1983." (Patsy, supra, at p. 516.) The court also rejected policy arguments for imposing an exhaustion requirement: "[P]olicy considerations alone cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent.... [T]he relevant policy considerations do not invariably point in one direction, and there is vehement disagreement over the validity of the assumptions underlying many of them. The very difficulty of these policy considerations, and Congress' superior institutional competence to pursue this debate, suggest that legislative not judicial solutions are preferable." (Id., at p. 513.)
In Felder v. Casey (1988) 487 U.S. 131, the United States Supreme Court reaffirmed its holding in Patsy and elaborated, "Although it is true that the principal remedy Congress chose to provide injured persons was immediate access to federal courts, [citation], it did not leave the protection of such rights exclusively in the hands of the federal judiciary, and instead conferred concurrent jurisdiction on state courts as well." (Felder, supra, at p. 147.) The Felder court reiterated that civil rights actions " 'exist independent of any other legal or administrative relief that may be available as a matter of federal or state law. They are judicially enforceable in the first instance.' " (Felder, supra, at p. 148.)
The California Supreme Court in Brosterhous v. State Bar (1995) 12 Cal.4th 315, 336, reviewed the Patsy and Felder decisions and concluded, "It is clear from these cases that we may not deny plaintiffs the right to a judicial action for relief in the first instance by imposing a requirement that the plaintiff initiate or exhaust state remedies before filing a section 1983 action." (Brosterhous, at pp. 340-341.)
A line of California cases holds that if an administrative tribunal renders a quasi-judicial decision that could be challenged by administrative mandamus under section 1094.5, a failure to pursue that remedy may collaterally estop a federal civil rights action. This "is a form of res judicata, of giving collateral estoppel effect to the administrative agency's decision, because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action." (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th637, 646; accord, Westlake Community Hospital v. Superior Court (1976) 17 Cal.3d 465, 484 (Westlake) and Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 72 (Johnson.) "The theory of the[se] issue-preclusion cases... is that when a state agency acting in a proceeding in a judicial capacity resolves disputed issues of fact properly before it which the parties have had adequate opportunity to litigate, federal courts must give the agency's fact-finding the same preclusive effect it would have in state courts." (McDaniel v. Board of Education (1996) 44 Cal.App.4th 1618, 1622 (McDaniel).)
III. Analysis
Relying on Patsy, Felder and Brosterhous, Calderon contends the trial court erred by finding he was required to exhaust his administrative and judicial remedies before filing his lawsuit alleging a section 1983 violation based on the hearing officer's reliance on information gathered after the Skelly hearing. City does not dispute the hearing officer engaged in post-Skelly interviews; rather, it contends Calderon would have prevented his constitutional injury from occurring by appealing his termination to the Civil Service Commission and seeking judicial review of his termination by administrative mandamus under section 1094.5. City relies on this statement in Galland v. City of Clovis (2001) 24 Cal.4th 1003: "When the state makes available a judicial procedure that can feasibly prevent a constitutional injury from occurring, no section 1983 remedy will lie." (Id. at p. 1025.)
Although the Galland court made a broad pronouncement, it was in the narrow context of rent control and the means available to tenants to benefit from Kavanau rent adjustments. (Kavanau v. Santa Monica Rent Control Board (1997) 16 Cal.4th 761.) Specifically, the issue the Galland court addressed was "whether a future rent adjustment, which we will refer to as a Kavanau adjustment, also forecloses a suit for damages for violation of a right to constitutional due process... under [section 1983]." (Galland, supra, 24 Cal.4th at p. 1008.) It noted, "The answer to this question in turn lies in the peculiar nature of the constitutional injury inflicted by a confiscatory rate regulation." (Id. at p. 1023.) The court reiterated its statement in Kavanau, supra, that"a landlord generally has the capacity to prevent large losses through resort to available state remedies." (Galland, supra, at p. 1025.) We conclude the Galland court's above-quoted statement is inapplicable here because this case does not involve a confiscatory takings and rent control.
City further relies on cases like Briggs, supra, 40 Cal.App.4th, Westlake, supra, 17 Cal.3d 465 and Johnson, supra, 24 Cal.4th 61, for its contention that collateral estoppel bars Calderon's section 1983 claim. Here, the governmental action being challenged under section 1983 is not the result of a quasi-judicial hearing because none was held to adjudicate the issue of whether the hearing officer erred by gathering information after the Skelly hearing and without affording Calderon an opportunity to challenge that information. Accordingly, there was no basis for applying collateral estoppel to the hearing officer's decision, which related only to the FEHA causes of action and are not the subject of this appeal. Therefore, the authorities cited by City do not apply and do not require the plaintiff first to seek another state judicial remedy, such as writ relief. "Generally, a federal civil rights plaintiff is not required to exhaust state administrative and judicial remedies." (McDaniel, supra, 44 Cal.App.4th at p. 1622 [citing to Felder, Patsy and Brosterhous].)
DISPOSITION
The summary adjudication of the Title 42 United States Code, section 1983 cause of action is reversed, and in all other respects the judgment is affirmed. Marvin Calderon is entitled to costs on appeal.
WE CONCUR: BENKE, Acting P. J., HALLER, J.