Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 315349
Lambden, J.
Egnacio R. “Nash” Balinton appeals from the judgment dismissing his third amended complaint against the City and County of San Francisco (city). The trial court had sustained without leave to amend city’s demurrer against Balinton’s third amended complaint. The court found, among other things, that Balinton’s failure to file a writ of mandate in the court following an administrative hearing barred all of his causes of action except for his first, which was based on a physical disability. Additionally, the court found all of Balinton’s claims were barred by the doctrine of collateral estoppel and that Balinton failed to allege a claim based on physical disability. Balinton did not raise any argument in his opening brief regarding the lower court’s ruling that he failed to exhaust his judicial remedy after the administrative hearing and we conclude that he therefore forfeited any challenge on this basis. Additionally, we agree with the trial court that Balinton failed to state a claim for physical disability.
BACKGROUND
The San Francisco Police Department (police department or department) hired Balinton as a police officer in 1989. In 1996, Balinton was arrested and charged with felony domestic abuse stemming from his off-duty conduct involving his then girlfriend. After the arrest, Balinton was criminally prosecuted and Police Chief Fred H. Lau brought disciplinary charges against him.
On February 3, 1997, Balinton pled no contest to two misdemeanor counts of violating Penal Code section 236, false imprisonment by deceit. As part of his plea agreement, Balinton accepted the following terms: six years of criminal probation; two years of detention, which were suspended; no contact of any kind with his former girlfriend; and attendance at a certified batterer’s program.
Immediately following his arrest, Police Chief Lau ordered Balinton’s disarmament, suspension, and his staying away from his former girlfriend. A few days later, the police department held an administrative hearing to allow Balinton to review the Police Chief’s actions. Assistant Police Chief Prentice E. Sanders conducted the hearing and determined that Balinton should remain suspended. On October 11, 1996, Chief Lau filed a complaint for disciplinary action against Balinton with the Police Commission.
In violation of his plea agreement and the Police Chief’s order, Balinton repeatedly called his former girlfriend. Balinton attempted to influence her testimony at the disciplinary hearing pending before the Police Commission. The district attorney filed a motion to revoke Balinton’s probation; the court denied revocation, but sentenced Balinton to 30 days in county jail.
The Police Commission held Balinton’s disciplinary hearing on March 17, 1999. Balinton was represented by counsel, called witnesses, and made arguments. Among the issues Balinton raised was that he was being singled out and treated differently than similarly situated officers. The Commission sustained the allegations that Balinton engaged in conduct that subverted the good order, efficiency, and discipline of the department, and failed to answer truthfully and without evasion when questioned by a superior officer. The Commission voted to terminate Balinton’s employment, but to hold the termination in abeyance for five years on the condition of good conduct. The Commission also suspended Balinton for 30 days and ordered him to participate in an anger management control program. Balinton did not challenge the findings of the Police Commission by filing a petition for a writ of mandate.
Balinton was disarmed for the duration of his criminal probation and assigned to administrative duties, primarily in the record room. This assignment to the record room lasted from 1999 to 2001; he was then moved to the investigations bureau.
Balinton tried on numerous occasions to have his weapon privileges restored. Department advised him that he could not carry a gun while he remained on criminal probation. However, department told him that if he succeeded in terminating his criminal probation, it would revisit the issue.
On September 25, 2000, Balinton filed in the superior court his original complaint in this lawsuit for damages and injunctive relief against city. He alleged disparate treatment on the basis of race and/or gender under the Fair Employment and Housing Act (FEHA) and Title VII of the Civil Rights Act of 1964, unlawful retaliation under FEHA, and disability discrimination under the Americans with Disabilities Act and FEHA. City removed the action to federal court; Balinton dismissed his federal claims, and the case was remanded to the state superior court on June 12, 2001.
On July 5, 2001, Balinton filed a petition for writ of mandate in the superior court, seeking injunctive relief. He sought to force city to return him to full police officer status and to return his weapon to him. The court denied the writ on November 14, 2001, stating that the chief of police has discretion to assign police officers to modified duty.
On September 10, 2002, Balinton was reinstated to full-duty status with no restrictions on his employment. On May 31, 2002, the superior court terminated Balinton’s probation; he was rearmed and assigned to patrol duties.
Balinton appealed the denial of his petition for writ of mandate in this court, and we dismissed the appeal as moot in our nonpublished decision Balinton v. City and County of San Francisco, A097420, filed on June 12, 2003. We concluded that Balinton’s appeal was moot because he had been returned to unrestricted work status. We held that the police chief’s assignment decisions were entirely discretionary under the Charter of San Francisco sections 4.126 and 2A.30. We observed that Balinton had no claim for damages based on lost benefits and income as he did not receive a reduction in pay. Finally, with regard to his claim that he was subjected to discriminatory treatment, we noted that Balinton’s present lawsuit was pending in the superior court and his discriminatory treatment claim should be decided in this lawsuit.
From June 2001 until April 2003, Balinton had served only one round of discovery in his legal action filed in September 2000. From May 2003 until June 2005, Balinton did nothing to prosecute his action. He then served a second round of discovery and moved to advance the trial to avoid mandatory dismissal under Code of Civil Procedure section 583.310. City moved for judgment on the pleadings as to the causes of action for discrimination and retaliation, which the lower court granted with leave to amend the complaint. Balinton filed a first amended complaint, and city demurred to all of the allegations in the first amended complaint. The court sustained the demurrer with leave to amend. Balinton filed a second amended complaint; the city again demurred; the court again sustained the demur with leave to amend.
On February 24, 2006, Balinton filed his third amended complaint against city for physical disability discrimination and failure to accommodate, retaliation, harassment, violations of the police officer bill of rights (Gov. Code, § 3300 et seq.), and race and/or gender discrimination in violation of FEHA. In his first cause of action based on an alleged physical disability, Balinton asserted that he had a back injury, which made it difficult for him to work in the record room. He maintained that city did not accommodate his injury and placed him in the record position with the intent to cause him injury. Balinton asserted in his second cause of action that city retaliated against him by placing him in the record room. The retaliation was because he presented a defense at the Police Commission hearing that Black officers are treated more harshly. Balinton alleged harassment and failure to prevent harassment in violation of Government Code section 12940, subdivisions (j) and (k) in his third cause of action. He claimed that city’s reasons for not returning his gun were not based on legitimate objectives, but to punish, humiliate, and restrict him from performing his job. In his fourth cause of action, Balinton alleged violations of the police officer bill of rights, which was also based on city’s reasons for not returning his gun to him. Finally, in his fifth cause of action, Balinton alleged racial discrimination in violation of Government Code section 12940, subdivisions (a) and (k).
City again filed a demurrer against Balinton’s third amended complaint. The trial court sustained the demurrer without leave to amend.
On May 17, 2006, the trial court issued its statement of decision on city’s demurrer to Balinton’s third amended complaint. The court ruled that Balinton failed to exhaust his judicial remedies following the Police Commission’s imposition of discipline; his failure to exhaust precluded litigation of Balinton’s second, third, fourth, and fifth causes of action. The court determined that “[t]hose issues were or could have been litigated before the Police Commission, and are now dispositively resolved against him.” Additionally, the court decided that our earlier decision affirming the denial of Balinton’s writ petition barred the current litigation on the basis of collateral estoppel. The court also found “facts alleged that post-date the 2001 writ proceeding are insufficient to constitute a cause of action[,]” and Balinton failed “to [allege] disability discrimination or failure to accommodate a disability.”
The trial court filed its judgment on June 2, 2006, and its notice of entry of judgment on June 30, 2006. Balinton filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
The standard of review governing an appeal from the judgment after the trial court sustains a demurrer without leave to amend is well established. “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
II. Waiver
In his opening brief before this court, Balinton’s sole argument is that the lower court erred when ruling collateral estoppel barred all of his claims. He did not address any of the other grounds set forth by the trial court for sustaining city’s demurrer, including his failure to exhaust his judicial remedy following the Police Commission’s 1999 hearing.
In his reply brief, Balinton addresses for the first the issue of his failure to exhaust his judicial remedy. He asserts that the trial court did not dismiss his claims on this basis, and attempts to bolster this argument by citing the following statement in the lower court’s statement of decision: “[T]o the extent [Balinton] seeks damages for the discipline imposed by the Police Commission, he failed to exhaust his judicial remedies . . . .” He maintains that this statement establishes that the court merely found that he could not make a claim for damages, but did not rule that his causes of action were barred.
Balinton’s argument in his reply brief, which is under the heading “Comments on Respondent’s Factual Assertions,” is difficult to decipher partly because all of his causes of action were for damages; he had been reinstated by the time he filed his operative pleading in this present lawsuit. Furthermore, the trial court clearly determined that Balinton’s failure to exhaust his judicial remedy bars all of his claims other than his first cause of action for physical disability. The court expressly stated as follows: “The court finds that Balinton could have raised, and in fact did raise, the issue of disparate treatment at the Police Commission hearing. Indeed, in preparing for the Commission trial, Balinton’s attorney obtained discovery regarding the race of the officers disciplined following domestic disputes and level of discipline. The Commission was not convinced that Balinton was being singled out, and voted unanimously to impose discipline.
“Because Balinton did not seek writ review of the Commission’s findings, he is barred from suing the City for damages on the second, third, fourth and fifth causes of action (retaliation, harassment, [police officer bill of rights] violations, and race/gender discrimination, respectively). Those issues were or could have been litigated before the Police Commission, and are now dispositively resolved against Balinton.” (Italics added.)
Thus, the lower court ruled that Balinton’s failure to file a writ of mandate following the Police Commission hearing barred all of his claims for damages with the exception of the first cause of action. Balinton, however, failed to challenge this ruling in his opening brief.
It is well established that “an appellant must affirmatively demonstrate error through reasoned argument and discussion of legal authority. [Citations.] Simply hinting at an argument and leaving it to the appellate court to develop it is not adequate.” (Cryoport Systems v. CNA Ins. Cos. (2007) 149 Cal.App.4th 627, 633.) Issues not raised in the opening brief are considered abandoned unless good reason is shown for failing to raise them. (H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 15; Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 352; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)
Here, other than his notice of appeal from the judgment, Balinton does not even hint at any challenge to the lower court’s ruling on the basis of his failure to exhaust his judicial remedy. Balinton does not cite a good reason for neglecting to challenge the court’s ruling on this basis. Rather, he claims in his reply brief that, even if we decide failure to exhaust was one of the grounds for dismissing his claims, he did not need to raise the issue because he appealed from the judgment and, since our review is de novo, we give no deference to the trial court’s ruling or to the reasons for its ruling. He maintains that we must “decide[] the matter anew.”
Balinton misconstrues his own burden on appeal and this court’s review of the issues on appeal. “Although our review of a [judgment of dismissal entered after a demurrer is sustained without leave to amend] is de novo, it is limited to issues which have been adequately raised and supported in [appellant’s] brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6, italics added; see also McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1016, fn. 4 [“We deem these claims abandoned for lack of argument that the trial court erred in dismissing them”].) “It is a fundamental rule of appellate review that the judgment appealed from is presumed correct and ‘ “ ‘all intendments and presumptions are indulged in favor of its correctness.’ ” [Citation.]’ [Citation.] An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852, fn. omitted.) To consider arguments not raised in the opening brief would negate the doctrine of waiver and require this court to act as appellant’s counsel on appeal, forcing us to determine all possible legal issues that might support reversal of the judgment. This is not our role.
The other reason Balinton provides for failing to challenge the lower court’s ruling on the grounds of his failure to exhaust his judicial remedy is his assertion that he had no reason to file a writ after the Police Commission hearing because he “liked” the ruling. He then proceeds to argue that his claims should not have been dismissed based on his failure to exhaust his judicial remedy. Since this latter argument was not raised in Balinton’s opening brief, we will not consider its merits.
Accordingly, we affirm the court’s ruling that Balinton’s failure to exhaust his judicial remedy after the Police Commission hearing bars all of his causes of action except for his first cause of action based on physical disability.
III. The Claim of a Physical Disability
The only remaining issue is whether the trial court erred in dismissing Balinton’s physical disability claim. The trial court ruled that Balinton failed to state a claim based on physical disability, but Balinton does not specifically address this ruling in either his opening or reply brief in this court. To the extent that he does set forth some of the allegations in his operative pleading in his opening brief, we consider this issue to be preserved on appeal.
With regard to his claim of a physical disability and a failure to accommodate, Balinton asserted that he developed a physical disability on September 9, 1994, after being involved in an on-duty motor vehicle accident where he injured his lower back. He claimed that this injury made it painful and difficult “to repeatedly bend, twist, and/or lift any item with significant weight to it especially in constricted areas such as the police records room.” He further alleged that city did not accommodate his physical disability when it assigned him to the police record room from April 1999 until May 2001.
To establish a prima facie case of disability discrimination under FEHA, Balinton “was required to show that he suffered from a disability, was otherwise qualified to do his job, and was subjected to adverse employment action because of his disability.” (Finegan v. County of Los Angeles (2001) 91 Cal.App.4th 1, 7.) Balinton does not allege that he was assigned to the record room because of his physical disability. Indeed, Balinton asserts that he developed a physical disability in 1994, but he was not assigned to the record room until April 1999. According to Balinton’s pleading, the assignment to the record room by the Police Chief was because the Chief “wanted to punish [him] above and beyond the Commission’s official discipline . . . because [he] was not terminated as recommended by the Chief.” Thus, Balinton’s pleading makes it clear that his assignment to the record room was not because of his physical disability.
Balinton also alleged in his operative complaint that city did not accommodate his physical disability and violated FEHA (Gov. Code, § 12940, subd. (m)). “It is also unlawful, and separately actionable under FEHA, for an employer ‘to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee’ unless the accommodation would cause ‘undue hardship’ to the employer.” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.) FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228.) It requires only that the accommodation chosen be “reasonable.” (§ 12940, subds. (a) & (m).)
In his third amended complaint, Balinton alleges that working in the record room required him to bend and twist, which caused him pain because of a physical disability he had suffered when in a vehicle accident in September 1994. He asserts that there were other “light duty jobs/positions and/or job modification positions available for which [he] was qualified for that did not involve [his] being required to perform the actions for which he requested a reasonable accommodation.” Balinton alleged that he complained in 1999 and 2000 about the lifting and bending, but was told not to “ ‘make waves’ and to be quiet.” However, after continuing to “make it known that the job was causing him further injury[,]” Balinton was placed at the front counter of the record room. Balinton notes that this permitted the public to see that he was wearing a badge indicating he had been disarmed by order of the Chief of Police. He, however, does not allege that the work at the counter required him to bend or lift. Subsequently, Balinton went on disability in May 2000 and, when he returned to work, he again was placed in the record room, but his job was to copy reports. Again, Balinton does not allege that this work required him to bend or lift. He did this work until he was sent to a position in special investigation in May 2001. As already noted, there was no requirement that city select the best accommodation, and assigning Balinton to work at the front desk of the record room and to copy reports was a reasonable accommodation because he does not allege any of this work involved bending or twisting.
Further, and more significantly, in his retaliation cause of action, Balinton asserts that city retaliated “from April 1999 until 2001,” and that retaliation included “restricting his duties of 90% of the duties which [city] contends constitutes the essential duties of a police officer,” and he cites to an attached exhibited entitled “San Francisco Police Officer Essential Task list.” This list sets forth numerous tasks under headings that include: “Lift/Carry,” “Push/Pull,” and “Bend/Stoop.”
Thus, Balinton complains in his operative pleading that city prevented him from performing tasks that, according to the exhibit attached to his pleading, required bending and lifting. Facts appearing in exhibits attached to the complaint are also accepted as true and given precedence over inconsistent allegations in the complaint. (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505; Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.) The foregoing allegation that city prevented him from performing specific tasks, which required him to bend and lift, directly contradicts his allegation that city failed to accommodate his disability when it assigned him to the record room, which required him to endure pain because he had to bend and lift. Accordingly, Balinton’s own allegations establish that his cause of action regarding city’s failure to accommodate his physical disability is meritless. The gist of Balinton’s complaint is clear: he wanted to be returned to “light duty,” which required lifting and bending, and found it humiliating to be in the record room.
The trial court provided Balinton with repeated opportunities to cure the defects in his pleading but his own allegations establish that he cannot state a claim based on physical disability. (See, e.g., Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [abuse of discretion to sustain demurrer if reasonable probability defect can be cured by amendment].) Balinton has the burden of demonstrating how the complaint can be amended to state a valid cause of action (ibid.), and he has failed to meet this burden. We therefore conclude that Balinton failed to state a claim based on physical disability and the trial court did not abuse its discretion in refusing to permit him another chance to amend his complaint.
DISPOSITION
The judgment is affirmed. Balinton is to pay the costs of appeal.
We concur: Haerle, Acting P.J., Richman, J.