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Bonar v. County of Los Angeles

California Court of Appeals, Second District, Seventh Division
Jul 15, 2008
No. B203003 (Cal. Ct. App. Jul. 15, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC346888, Terry Green, Judge.

Arthur R. Angel for Plaintiff and Appellant.

Goldstein & Goldstein, Charles H. Goldstein and Landon J.M. Yun for Defendant and Respondent.


WOODS, J.

INTRODUCTION

Appellant, Marisa Bonar, appeals from a judgment in favor of respondent, County of Los Angeles and all defendants, on appellant’s complaint of racial discrimination in violation of California’s Fair Employment and Housing Act (FEHA) under Government Code section 12900 and retaliation in violation of FEHA under Government Code section 12900. On appeal, appellant asserts that the trial court committed reversible error in finding that she was required to exhaust her administrative remedies with the Civil Service Commission before pursuing her FEHA discrimination claim in court. As hereafter explained, the judgment for respondent should be affirmed.

FACTUAL AND PROCEDURAL SYNOPSIS

On June 9, 2003, appellant, Marisa Bonar, was terminated from her position as a children’s social worker by the County of Los Angeles Department of Children and Family Services (DCFS). The DCFS cites performance issues as its reason for terminating her. Appellant, believing the termination to be due to racial discrimination (appellant is an African-American female) and retaliation for her previous charge of discrimination against the DCFS in April of 2002, filed her complaint with the Los Angles County Civil Service Commission (the Commission) on June 19, 2003. Appellant had three evidentiary hearings, June 22, 2004, December 15, 2004, and December 22, 2004, over a six month period before Officer Tom Salata.

During the June 22, 2004, evidentiary hearing Officer Tom Salata did not allow into evidence certain evidence offered by appellant. On December 22, 2004, the Commission received a letter from appellant’s attorney, Shirley Lee, stating that appellant objected to the continued appointment of Officer Tom Salata as Hearing Officer on the grounds that appellant believed Officer Salata to be unfair. On January 19, 2005, the Commission filed appellant’s request that Officer Salata be discharged. However, on January 20, 2005, the Commission ruled that Officer Salata would not be recused. The Commission then received another letter from appellant’s attorney stating that appellant with withdrawing her appeal of her discharge and requested that the pending hearings (January 31, 2005, February 1, 2005 & February 7, 2005) be dismissed. On February 3, 2005, the Commission sent notice to all parties canceling appellant’s hearings with regards to appellant’s appeal of her discharge.

On June 9, 2004, appellant filed a Charge of Discrimination with FEHA. On June 2, 2005, FEHA issued a Notice to Complainant of Right to Sue. Appellant timely filed a complaint in the Los Angeles County Superior Court on February 3, 2006, arguing racial discrimination in violation of FEHA under Government Code section 12900 and Retaliation in violation of Government Code §12900.

On March 7, 2006, respondent filed its original answer with 27 affirmative defenses that did not include the affirmative defense of a failure to exhaust administrative remedies. On November 6, 2006, eight months after filing its original answer, respondent filed a motion for leave to amend its answer to allege the affirmative defense of failure to exhaust administrative remedies. Over appellant’s opposition the trial court granted the motion giving respondent leave to amend its answer on December 20, 2006. Respondent filed an Amended Answer on December 20, 2006, arguing that appellant failed to exhaust administrative remedies.

Subsequently, respondent filed a motion for Judgment on the Pleadings and a Memorandum of Points and Authorities in Support of Judgment on the Pleadings arguing appellant’s failure to exhaust her administrative remedies with the Commission before filing the superior court action entitled it to the relief requested. Respondent then filed a Request for Judicial Notice under Evidence Code sections 451-453 as the documents being requested for judicial notice were official records of the executive department of the State of California and not reasonably subject to dispute. On January 3, 2007, appellant filed her opposition to respondent’s Motion for Judgment on the Pleadings arguing that she had exhausted her administrative remedies with the DFEH and was thus entitled to purse her timely filed civil action. She also argues that she was not required to exhaust her administrative remedies available through the Commission; and lastly that respondent did not meet the requirements for Judgment on the Pleadings because it did not show its entitlement to judgment on the face of the pleadings but only through judicial notice

On January 22, 2007, the Honorable Terry A. Green granted the respondent’s motion for Judgment on the Pleadings with leave to amend. The court found that appellant had chosen her forum for resolving her discrimination claims by instituting her proceedings before the Commission. The court found that appellant had her choice of a forum and once she selected that forum before the Commission she was required to exhaust the administrative process before filing a civil action. The court noted that to do otherwise would encourage “individuals to test the waters in the LACCSC and other similar administrative bodies and – at the last possible minute before a decision was rendered – decide whether proceedings were running in or against his or her favor and accordingly maintain or abandon proceedings at that stage. This would only detract from the judicial economy, agency expertise, and potential for swift resolution of grievances. . . .”

Appellant was unable to amend her pleadings to allege exhaustion of administrative remedies. A final Order was issued by the court on May 7, 2007, granting the motion of respondent for judgment on the pleadings. Appellant filed a timely notice of appeal from the judgment.

DISCUSSION

On appeal, appellant alleges that the trial court erroneously decided in respondent’s favor on three specific points. First because the trial court failed to properly interpret the relevant case law and find that appellant was not required to exhaust her administrative remedies as a FEHA-claim appellant. Secondly, that the trial court improperly granted the Judgment on the Pleadings because of its improper interpretation of relevant case law. Finally, that the trial court erred in granting respondent’s Judgment on the Pleadings by basing its decision on reference to a matter set forth in the respondent’s answer. As more fully explained hereafter the judgment is affirmed.

I. Standard of Review

The parties urge different standards of review on appeal. The threshold question of reviewing a trial court’s granting of a Judgment on the Pleadings is equivalent to a demurrer made after the pleadings are in or for a judgment following the sustaining of a demurrer. (Hughes v. McArthur Co. (1987)192 Cal.App.3d 951, 955; Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 467.) Foundation For Taxpayer & Consumer Rights v. Nextel Communications (2006) 143 Cal.App.4th 131, 135 explains that when reviewing a judgment on the pleadings the appellate court uses an independent de novo review to determine as a matter of law whether the complaint sets forth a cause of action. When independently reviewing the granting of a Judgment on the Pleadings an appellate court looks not only to the face of the complaint but must also consider matters subject to judicial notice. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Hughes v. McArthur Co. (1987) 192 Cal.App.3d 951, 955.)

II. Appellant Must Exhaust her Administrative Remedies with the Commission Before She May Proceed With This Action

As stated above upon her termination appellant filed a discrimination claim with the Commission but eventually withdrew her claim and subsequently filed a claim under FEHA that eventually led to her filing a civil action in the Los Angeles County Superior Court. The threshold question is whether if after choosing her forum for her discrimination claim appellant was required to exhaust her administrative remedies in that forum.

There is no doubt that appellant had a choice as to where to bring her claim, the Commission or to the superior court. It is important to note that the Legislature’s intent is to give public employees the same tools against employment discrimination that are available to private employees. (Schifando, supra, 31 Cal.4th at p. 1085.) The facts show that appellant chose to bring her discrimination complaint to the Commission and that the choice was voluntary. In voluntarily bringing her complaint to the Commission appellant invoked the decision making process of the Commission and to let it take effect before then suing in the superior court.

Now, if appellant had merely filed her claim with the Commission and then timely and voluntarily dismissed her action before suing in the superior court, this court more easily could have found that she could pursue her claim in superior court. What in fact transpired was that appellant chose her forum and then pursued three evidentiary hearings over a six-month period. Decisions in regards to what evidence could be used were made, time, money, and effort were expended by the Commission on resolving appellant’s case. Additionally, appellant filed a challenge to the officer presiding over her claim on the grounds of perceived bias. When the officer was not recused, appellant voluntarily dismissed her claim with the Commission. The appellant clearly chose the Commission as her forum and as such must exhaust her remedies with the Commission before she may bring her claim to this court. (See Schifando, supra, 31 Cal.4th 1074; Page v. Los Angeles County Probation Department (2004) 123 Cal.App.4th 1135; Ahmadi-Kashani v. Regents of Univ. of California (2008) 159 Cal.App.4th 449.)

While appellant will argue that she was free to voluntarily withdraw her claim until a binding adverse decision was made by the Commission, this is just not so. None of the relevant case law (Schifando, Page, Ahmadi-Kashani) establishes such a principle. What each of these cases clearly stands for is that while appellant does have her choice of forum, once that forum is chosen and pursued past preliminary stages, the precise point we don’t decide in this case, withdrawal from that forum is forbidden until a resolution is reached. It is important to note that the forum that appellant chooses must be impartial, as the Commission is required to be. Forum shopping is discouraged and is not to be tolerated at the mere hint of bias without a final determination in the case.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondent.

We concur: PERLUSS, P.J. ZELON, J.


Summaries of

Bonar v. County of Los Angeles

California Court of Appeals, Second District, Seventh Division
Jul 15, 2008
No. B203003 (Cal. Ct. App. Jul. 15, 2008)
Case details for

Bonar v. County of Los Angeles

Case Details

Full title:MARISA BONAR, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Jul 15, 2008

Citations

No. B203003 (Cal. Ct. App. Jul. 15, 2008)