Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 468966
Haerle, J.
I. INTRODUCTION
In 2000, appellant, an immigrant from Ghana, enrolled in the University of California San Francisco’s School of Pharmacy (hereafter UCSF and School). Due to various and sundry subsequent alleged failings by him regarding examinations, attendance and the like, in 2004 he was excluded from the list of graduating students and, in January 2005, “dismissed” from the school. Several years after all these events, i.e., in July 2008, appellant filed a four-cause-of-action first amended complaint (FAC) against the Regents. The Regents demurred to that complaint, and the matter was briefed and argued to the San Francisco Superior Court (the Honorable Patrick Mahoney). That court granted the Regents’ demurrer without leave to amend as to all causes of action because of appellant’s failure to exhaust the administrative process. Appellant appeals but we affirm the trial court’s order and resulting judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
According to his FAC, appellant began his pharmacy studies at UCSF in 2000. Per that complaint, beginning in at least 2004, appellant encountered a series of difficulties in, e.g., taking a “make-up examination,” completing both his required clinical rotations and a required paper. He claims that, starting in 2002, UCSF failed to accommodate his disabilities which included “depression, panic attacks and anxiety disorder.” He alleged that, although the school allowed him to take one “make-up exam,” it implicitly discriminated against him in that process in that two “non-African American” students were given a “materially different” make-up examination.
According to the FAC, after various and sundry complaints and grievances were asserted and considered by School professors and administrators, pursuant to the university’s procedures, appellant was first suspended and later, in January 2005, dismissed from the School.
The trial court took judicial notice of the extensive administrative record, as we have also.
First, however, a word is in order on the procedures adopted—and apparently followed here—by the School regarding student grievances generally. When and where a student cannot resolve a grievance by informal means, he or she may request a hearing before an “Ad Hoc Grievance Committee” (hereafter Grievance Committee), consisting of three faculty members and two students. The grieving student may, of course, attend that hearing and bring an attorney or other representative, present evidence directly or through other witnesses, and examine witnesses provided by UCSF. The committee then prepares a written report of its findings of fact and recommendations, a copy of which is provided to the complaining student. That student is also provided an appeal procedure if he or she is not satisfied with the outcome, but must initiate such an appeal within ten days of receiving an adverse decision.
Appellant filed two separate grievances. The first was regarding his dismissal and was filed via a letter dated January 31, 2005. It alleged general discrimination against him, especially by one professor, Professor Michael Winter. We will not go through the allegations or procedure followed regarding this grievance because, although denied by the Grievance Committee, that denial was subsequently reversed due to an appeal by appellant and a September 22, 2005, ruling by the Grievance Committee’s “Review Committee” that nullified the denial on procedural grounds.
Appellant’s second grievance was filed on March 15, 2005, and was against three individual professors. It alleged discrimination based on appellant’s race, color and handicap or disability, and also alleged retaliation against him by Professor Winter. In January 2006, an official of UCSF’s Office of Affirmative Action, Equal Opportunity and Diversity, denied this complaint in its entirety, and also, later that same year, denied appellant’s request for reconsideration of that decision. This grievance was, as will be noted, then consolidated with the first grievance.
The first grievance was then reheard by the Grievance Committee on March 23 and 27, 2007. That committee found appellant’s complaint—enlarged by agreement to include the claims of discrimination and failure to accommodate of the second grievance—to be without merit. It noted that appellant had testified that he “did not feel that he had been discriminated against based on race or national origin” and that there was, thus, “no evidence presented to support this claim of discrimination.” The committee also rejected the retaliation claim of appellant regarding Professor Winter’s actions, finding that the latter was actually attempting to help appellant. Finally, it rejected appellant’s failure to accommodate claim, noting that appellant had failed to present any evidence to support a claim of disability, and that individuals in the school were, in fact, ready and willing to accept appellant’s claims of some disabilities, e.g., anxiety. The committee determined, in conclusion, that “there were non-discriminatory reasons for Mr. Addo’s dismissal from the school.”
In a cover letter dated April 30, 2007, accompanying this report, Associate Dean Robert Day of the School advised appellant that, on behalf of the School, he accepted the committee’s findings and conclusions, and also specifically advised appellant of his right to appeal, including providing appellant a copy of the provisions of the School’s rules regarding the latter. However, per the record provided us—and most importantly—no such second appeal was ever filed by appellant.
Instead, on September 18, 2007, appellant filed a complaint against the Regents. According to the San Francisco Superior Court’s website, that complaint was apparently stricken for appellant’s failure to pay the required filing fees. The complaint was filed again on November 7, 2007. Respondent demurred on various grounds, including appellant’s failure to exhaust his remedies but, via stipulation, that demurrer was taken off calendar and appellant allowed to file his FAC with a fourth cause of action (for administrative mandamus). Such was done, although respondent was apparently not served with the FAC. When respondent’s counsel obtained a copy of the FAC, the Regents filed a demurrer and supporting documents on July 21, 2008.
In neither party’s appendix was the full text of the fourth cause of action of appellant’s FAC (the administrative mandamus claim) set forth; we telephonically requested and obtained the same from respondent’s counsel. Those additional pages (i.e., pages 20-22 of the FAC) are hereby ordered incorporated into the record of this case.
That demurrer was scheduled to be heard on September 11, 2008; on the preceding day, a tentative ruling was issued granting the demurrer without leave to amend. Appellant failed to timely request leave to appear and argue at the scheduled hearing and, thus, on October 3, 2008, the trial court entered its order granting the Regents’ demurrer without leave to amend. Although not in the appendices provided us by either party, a judgment was apparently entered in favor of the Regents on December 2, 2008. Appellant filed a timely notice of appeal the following month.
III. DISCUSSION
Just five years ago, our Supreme Court issued a unanimous decision which makes clear that the trial court was correct in sustaining the Regents’ demurrer without leave to amend. That decision is Campbell v. Regents of University of California (2005) 35 Cal.4th 311 (Campbell), a case not cited much less discussed in appellant’s only brief to us. In that case, the San Francisco Superior Court dismissed a wrongful termination action brought against the Regents by a former architect employed by UCSF; she sued under provisions of the Government and Labor Codes alleging that she was wrongfully discharged by UCSF because of “whistleblowing,” but did not follow the prescribed internal procedures for making such a complaint. After being so advised by the UCSF authorities, instead of refiling her complaint properly, she sued the Regents in San Francisco Superior Court, just as this appellant did. That court sustained the Regents’ demurrer to an amended complaint, and then dismissed her action. Division One of this court affirmed, and that opinion was, in turn, affirmed—as noted, unanimously—on March 7, 2005, in an opinion authored by Associate Justice Chin.
Campbell was cited in respondent’s brief, but appellant filed no reply brief in this appeal.
Justice Chin first discussed the Regents’ constitutional authority in such circumstances: “Because the present action involves the rights of a UCSF employee, we should note the Regents’ constitutional status. The California Constitution establishes the Regents as a ‘public trust... with full powers of organization and government.’ [Citation.] We have observed that ‘Article IX, section 9, grants the [R]egents broad powers to organize and govern the university and limits the Legislature’s power to regulate either the university or the [R]egents. This contrasts with the comprehensive power of regulation the Legislature possesses over other state agencies.’ [Citation.] This grant of constitutional power to the University includes the grant of quasi-judicial powers, a view that is generally accepted in our jurisprudence. [Citations.] [¶] The Regents may also exercise quasi-legislative powers, subject to legislative regulation. Indeed, ‘policies established by the Regents as matters of internal regulation may enjoy a status equivalent to that of state statutes.’ [Citations.] The authority granted the Regents includes ‘full powers of organization and government, subject only to such legislative control as may be necessary to insure compliance with the terms of the endowment of the University and the security of its funds.’ [Citation.] Thus, ‘[t]he Regents have been characterized as “a branch of the state itself” [citation] or ‘a statewide administrative agency’ [citation]” [citation] and ‘[i]t is apparent that the Regents as a constitutionally created arm of the state have virtual autonomy in self-governance’ [citation]. Therefore, ‘[t]he Regents have the general rule-making or policy-making power in regard to the University [citation], and are (with exceptions not material here) fully empowered with respect to the organization and government of the University.’ [Citation.] The Regents may create a policy for handling whistleblower claims under their power to organize and govern the University. Such a policy is treated as a statute in order to determine whether the exhaustion doctrine applies. [¶] The Regents are not entirely autonomous. The Legislature may regulate the Regents’ actions in three areas: (1) the Regents cannot compel appropriations for university salaries, because the Legislature is vested with the power of appropriation; (2) statutes that express the state’s general police power, such as workers’ compensation laws, apply to the Regents; and (3) when legislation regulating public agency activity addresses matters of statewide concern not involving internal university affairs, the legislation may be made applicable to the Regents. [Citation.]” (Campbell, supra, 35 Cal.4th at pp. 320-321.)
Justice Chin then continued regarding the doctrine of exhausting administrative remedies: “As the Court of Appeal observed, the rule of exhaustion of administrative remedies is well established in California jurisprudence, and should apply to Campbell’s action. ‘In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.’ [Citation.] The rule ‘is not a matter of judicial discretion, but is a fundamental rule of procedure... binding upon all courts.’ [Citation.] We have emphasized that ‘Exhaustion of administrative remedies is “a jurisdictional prerequisite to resort to the courts.” [Citation.]’ [Citation.] ‘The gist of [cases earlier cited by the court] is a respect for internal grievance procedures and the exhaustion requirement where the Legislature has not specifically mandated its own administrative review process....’ [Citation.] The exhaustion rule extends to employees seeking judicial review of an employer's administrative findings. [Citation.] [¶] The rule has important benefits: (1) it serves the salutary function of mitigating damages; (2) it recognizes the quasi-judicial tribunal's expertise; and (3) it promotes judicial economy by unearthing the relevant evidence and by providing a record should there be a review of the case. [Citation.] As the Court of Appeal noted, the administrative remedies exhaustion rule has several exceptions, including, but not limited to, those Campbell raises: (1) when the administrative agency cannot provide an adequate remedy, and (2) when the subject of controversy lies outside the agency’s jurisdiction. [Citation.] These exceptions remain flexible and are by no means limited to those discussed here. [Citation.]” (Campbell, supra, 35 Cal.4th at pp. 321-322.)
The principles enunciated in Campbell have been applied both before and after that case’s publication, and many of those applications were in cases involving employees or students at public colleges and universities. (See, e.g., Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 889; California Public Employees’ Retirement System v. Superior Court (2008) 160 Cal.App.4th 174, 179-180, disapproved on other grounds in State Bd. Of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963, 978, fn. 5; Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749, 767-769 (Ohton); Gupta v. Stanford University (2004) 124 Cal.App.4th 407, 411-413; Hood v. Hacienda La Puente Unified School Dist. (1998) 65 Cal.App.4th 435, 439-441; Edgren v. Regents of the University of California (1984) 158 Cal.App.3d 515, 520-523.)
Not one of these cases is cited—much less discussed—in appellant’s brief to us.
In the most recent of these similar cases, Ohton, one of our sister courts quoted from Campbell in holding that a discharged state college coach was required to completely exhaust his administrative remedies before suing his former college-employer for retaliatory discharge. The rule of exhaustion of administrative remedies is not, that court wrote “ ‘ “a matter of judicial discretion, but is a fundamental rule of procedure... binding upon all courts.” ’ ” (Ohton, supra, 148 Cal.App.4th at pp. 769-770, quoting Campbell, supra, 35 Cal.4th at p. 321.) That court then added: “Failure to exhaust administrative remedy is a jurisdictional defect that may be raised at any time by the parties or the court.” (Ohton, supra, 148 Cal.App.4th at p. 770.)
In his sole brief to us, as already noted appellant does not deal with the law as laid down in Campbell but, nonetheless, posits several arguments as to why the rule regarding exhaustion of administrative remedies should not apply here, i.e., by requiring that he first exhaust his administrative appeal remedy before suing the Regents. He argues that (1) it would have been “futile” for him to appeal further because, among other things, of Associate Dean Day’s involvement in the appeal process, (2) the appeal process did not provide a “fair” procedure, (3) he did not have an opportunity to raise his discrimination claims in the hearing that was held, and (4) the School’s 10-day time limit for appeals was “too short.”
None of these arguments works, either because of the applicable law or the inadequacy of appellant’s pleadings, or a combination of both.
First of all “ ‘[f]utility is a narrow exception to the general rule’ ” regarding exhaustion of administrative remedies and applies only where “ ‘ “the petitioner can positively state that the commission has declared what its ruling will be in a particular case....” ’ ” (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418, quoting Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 683 (Doyle); Gantner & Mattern Co. v. California E. Com. (1941) 17 Cal.2d 314, 318, and also citing Ogo Associates v. City of Torrance (1974) 37 Cal.App.3d 830, 834; see also Economic Empowerment Foundation v. Quackenbush (1997) 57 Cal.App.4th 677, 690.) Appellant’s FAC does not come close to meeting this test.
The only one of these cases cited in appellant’s brief is Doyle, which stands for exactly the opposite of the argument appellant proffers regarding “futility.” The appellate court in that case rejected such an argument by the appellant there, ruling that “[f]utility is a narrow exception to the general rule” and that the appellant had “failed to produce any objective evidence to illustrate futility. His own speculative, subjective feelings about the matter do not allow him to unilaterally ignore avenues of review. If that were the case, exhaustion would be a dead doctrine.” (Doyle, supra, 117 Cal.App.3d at p. 683.)
Second, the grievance and appeal process applicable to aggrieved students at UCSF, the process judicially noticed by the trial court and now by us, clearly provides an expeditious and fair procedure. And such a procedure was utilized here. For example, appellant’s first grievance was heard by a five-member panel, not including the two individuals appellant’s FAC charged were always biased against him, Associate Dean Day and Professor Winter. And, even after that grievance was denied, appellant’s appeal of that denial was successful and the matter then reheard in the second grievance submitted to the Grievance Committee. Finally on this point, appellant’s contention that he did not avail himself of the administrative appeal procedure because of its inherent unfairness is undermined by the fact that he used it, and successfully so, the first time around—a fact specifically acknowledged in appellant’s FAC.
Third, appellant’s argument that he did not have an opportunity to raise his allegations regarding ethnic and handicap-related discrimination in the second review procedure is flatly contradicted by the record. It shows that both parties stipulated that these issues would be—as they were—addressed in the second hearing. And they were, as the text of the second Grievance Committee’s opinion makes clear. Thus, even if no appeal process was provided with respect to the January 2006 decision of the UCSF’s “Office of Affirmative Action, Equal Opportunity and Diversity,” that is of no consequence because the essence of that complaint was clearly consolidated with appellant’s second, i.e., March 2006, grievance heard before the Grievance Committee.
Fourth, appellant’s argument that the 10-day period for undertaking an appeal was “too short” is undermined by the fact that he undertook—successfully, as already noted—such an appeal from the first ruling of the Grievance Committee and also by his failure to cite any authority suggesting that a 10-day appeal period is too short. (See, e.g., Lab. Code, §§ 98.2 & 1700.44, subd. (a), for statutory provisions providing exactly that time period for appeals of administrative decisions.)
The two cases appellant cites in his brief in support of his “too short” argument are not remotely comparable. Both involved appellate court holdings that employment arbitration agreements which provided extremely short periods of limitations for an employee to initiate arbitrations (e.g., 180 days from the date the “dispute or controversy first arose”) and/or imposing such limitations unilaterally, i.e., when the employer is not similarly-bound, are unconscionable. (See Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1283, and Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1542.)
Over and above the issue just discussed, i.e., appellant’s failure to exhaust his administrative remedies against UCSF by appealing the adverse ruling in his second grievance proceeding, there are several other reasons why the trial court was correct in sustaining, without leave to amend, the Regents’ demurrer to his FAC. These reasons involve the first three causes of action of appellant’s four-cause-of-action FAC.
Appellant’s fourth cause of action for administrative mandamus is barred because, as previously discussed, of appellant’s failure to file a timely appeal of the Grievance Committee’s second decision, and hence exhaust his administrative remedies. (See Campbell and the other authority cited at pages 5-7, ante.)
The first cause of action in appellant’s FAC sought declaratory relief “determining [Regents’] obligations to specifically perform its obligations to reinstate Plaintiff as a student, overturn the dismissal and provide accommodations reasonable and appropriate to his disability.” But just before that paragraph was another that made quite clear that what was being sought was an adjudication regarding the Regents’ past treatment of appellant: “Specifically, Plaintiff has been wrongfully dismissed as a student; denied reasonable accommodations and otherwise not treated fairly in accordance with Defendants [sic] standards, rules, and regulations.” And all of the allegations of the treatment of appellant by Regents and their staff are phrased entirely in the past tense.
However, the law is clear that declaratory relief actions must be directed at reasonably anticipated future conduct of a defendant, and not past conduct. (See, e.g., Babb v. Superior Court (1971) 3 Cal.3d 841; Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 885; Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1403-1404; Fireman’s Fund Ins. Co. v. Maryland Casualty Co. (1994) 21 Cal.App.4th 1586, 1593, fn. 5. And the law is also clear that a trial court’s grant of a demurrer dismissing a declaratory relief cause of action is reviewed for abuse of discretion. (C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376, 383.)
In view of the universal past-tense allegations of appellant’s FAC and the fact that his dismissal from the School occurred over four years ago, i.e., in January 2005, the trial court clearly did not abuse its discretion in sustaining the Regents’ demurrer to appellant’s first cause of action for declaratory relief.
Finally, appellant’s second and third causes of action are clearly barred by the relevant statutes of limitations. They allege, respectively, disability discrimination and race discrimination although, rather remarkably, there is no reference in either cause of action to any statutory bases other than a vague, general reference to “State and Federal Laws” prohibiting either type of discrimination.
We assume that appellant’s second cause of action, the one for disability discrimination, is intended to be brought under Title II of the Americans With Disabilities Act, 42 United States Code section 12101 et seq. But the applicable statute of limitations for such actions is the two-year period for personal injury claims set forth in Code of Civil Procedure section 335.1. (See, e.g., Pickern v. Holiday Quality Foods, Inc. (9th Cir. 2002) 293 F.3d 1133, 1137, fn. 2 (Pickern), and cases cited therein.) And the pendency of any internal grievance procedure does not change this. (See Delaware State College v. Ricks (1980) 449 U.S. 250, 261 (Ricks); International Union of Electrical Radio and Machine Workers v. Robbins & Myers, Inc. (1976) 429 U.S. 229, 234-235.)
Before 2002, the period was one year, as noted in Pickern. (See Stats. 2002, ch. 448, § 1.)
Similarly, the statute of limitations for appellant’s third cause of action alleging racial discrimination (presumably intended by appellant to be brought under 42 United States Code sections 1981 or 1983) are (1) not tolled by the prior administrative proceeding pursuant to Ricks and (2) subject to the same statute of limitations. (See Taylor v. Regents of the University of California (9th Cir. 1993) 993 F.2d 710, 711-712.)
As noted above, appellant’s action was first filed in November 2007. But, per his FAC, he was dismissed by the School in January 2005. As a consequence, both appellant’s second and third causes of action are time-barred.
Appellant’s third cause of action is also barred by the principle that neither sections 1981 or 1983 of title 42 of the United States Code applies to governmental entities, as such are not “persons” under the meaning of those statutes. (See, e.g., Thompson v. City of Los Angeles (9th Cir. 1989) 885 F.2d 1439, 1442-1443 [a case involving a suit against, among other defendants, the University of California at Los Angeles, aka “UCLA”]; Pittman v. Oregon, Employment Dept. (9th Cir. 2007) 509 F.3d 1065, 1071-1074; Kirchmann v. Lake Elsinore Unified School Dist. (2000) 83 Cal.App.4th 1098, 1103-1105.)
IV. DISPOSITION
The order sustaining the demurrer to appellant’s FAC without leave to amend and the resulting judgment in favor of the Regents are both affirmed.
We concur: Kline, P.J., Lambden, J.