Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Peter D. Lichtman, Judge Los Angeles County Super. Ct. No. BC327420
Shelly M. Mandell; Law Office of Patricia Bellasalma and Patricia Bellasalma for Plaintiffs and Appellants.
Bannan, Green, Frank & Terzian and Richard R. Terzian for Defendant and Respondent.
VOGEL, J.
The Los Angeles County Employees Retirement Association (LACERA) is an independent governmental entity providing retirement, disability and death benefits to eligible Los Angeles County employees based on the members’ contributions to the retirement system pursuant to the County Employees Retirement Law of 1937 (CERL, Gov. Code, § 31450). This appeal focuses on CERL’s distinction between “safety members” and “general members,” with the former making larger contributions to LACERA and receiving more generous retirement benefits than the latter. Two retired County police officers challenged LACERA’s decision that they are general members and sought reclassification as safety members. Their request was denied, as was their subsequent demand for a hearing. The officers then sued LACERA, challenging the system as discriminatory (because Los Angeles County Sheriff’s deputies are paid more than the County’s police officers) and claiming they have a right to a hearing. The trial court sustained LACERA’s demurrer without leave to amend.
All section references are to the Government Code.
We agree with the trial court that the classification of LACERA’s members is a matter for the Legislature, that (on the merits and by the bar of collateral estoppel) LACERA has no jurisdiction to reclassify a general member as a safety member, that no purpose would be served by a hearing, and that litigation of the discrimination claims is barred as a matter of law. We affirm.
FACTS
A.
In 2005, two retired police officers, George Frank and Rodney Morton (collectively Frank), sued LACERA, the County of Los Angeles, the County’s Director of Personnel, the Los Angeles County Sheriff’s Department, and several individuals affiliated with LACERA. In March 2006, Frank filed a first amended complaint, seeking damages and injunctive and writ relief against LACERA based on the following presumptively true material facts. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Although there are two other named plaintiffs, Alfred Aguilera (an active police officer) and the Los Angeles County Police Officers Association, the arguments advanced on this appeal apply only to Frank and Morton and, among the defendants, only LACERA.
County police officers perform the same or substantially similar duties and have essentially the same responsibilities as Sheriff’s deputies but are nevertheless “artificially separated” by the County into the police officer classification and “benchmarked” as security guards or non-sworn custody assistants, as a result of which there is a gross disparity in wages and benefits between police officers and Sheriff’s deputies. Because police officers are predominantly minorities, and the higher-paid Sheriff’s deputies are predominantly Caucasian, the disparity is race-based. The police officers have sought reclassification as safety members, to no avail, and the County has failed to verify objectively a distinction between the duties and responsibilities of police officers and Sheriff’s deputies.
In support of these allegations, the first amended complaint refers to a prior action, Frank v. County of Los Angeles (Super. Ct. L.A. County, No. BC198771) where similar claims were made. In June 2003, the trial court entered a judgment on a jury verdict in favor of the plaintiffs and against the County, but that judgment was recently reversed by Division Four of our court, which found that the mere fact that the police officers are mostly minorities and the Sheriff’s deputies are mostly Caucasian does not prove race discrimination. (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, which we refer to as the Division Four case.)
LACERA has a statutory duty to determine, for purposes of retirement, whether a member is a safety member (based on a factual showing that the member was principally involved in active law enforcement). LACERA violated that duty when Frank applied for service-related disability retirement benefits, then compounded the problem by denying Frank’s request for a hearing to challenge the finding that Frank was not entitled to benefits as a safety member (although, as Frank concedes, he is receiving service-connected benefits as a general member). Accordingly, LACERA has breached its statutory duties, engaged in discriminatory conduct, violated Frank’s state and federal constitutional rights and, by ratifying the County’s wrongful conduct, unlawfully discriminated against Frank.
B.
LACERA is named in eight of ten causes of action alleged in the first amended complaint -- unlawful race discrimination in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.) and Title VII (42 U.S.C. § 2000e et seq.), violation of the state and federal equal protection and due process guarantees, failure to prevent discrimination, and other similar claims -- and the prayer is for damages, injunctive and declaratory relief, and a writ of mandate directing LACERA to reclassify Frank as a safety officer.
LACERA demurred, contending this action is barred by the doctrine of collateral estoppel based on a prior action in which the trial court (Hon. Dzintra Janavs) rejected a claim by County police officers that LACERA had a statutory, ministerial duty to reclassify all of the County’s active police officers as safety members. (Frank v. Los Angeles County Employees Retirement Association (Super. Ct. L.A. County, No. BS074607), which we refer to as Judge Janavs’s case.) LACERA’s demurrer in our case was accompanied by a request for judicial notice of the pleadings, trial transcript and judgment in Judge Janavs’s case.
The judicially noticed documents show that the petitioners in Judge Janavs’s case -- all active police officers -- claimed that LACERA had a statutory, ministerial duty to reclassify them from “miscellaneous” members to “safety members” on the ground that their employment involved active law enforcement duties. At trial, Judge Janavs found that LACERA did not have jurisdiction to reclassify the entire class of active police officers as safety members and, on that basis, rendered judgment for LACERA in March 2003. The petitioners did not appeal and that judgment is final.
Frank opposed LACERA’s demurrer, claiming the judgment in Judge Janavs’s case could not affect the rights of any police officer who had not been a party to the prior proceeding, and that this action is substantively different because it addresses retirement rights, not the reclassification of active police officers.
The trial court (Hon. Peter D. Lichtman) granted LACERA’s request for judicial notice and sustained its demurrer without leave to amend on the ground that the pleading failed to allege facts sufficient to state a cause of action against LACERA. This appeal is from the judgment thereafter entered.
On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, the issue is whether, assuming the truth of all well pleaded facts and those subject to judicial notice, the complaint alleges facts sufficient to state a cause of action. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672; Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
I.
Frank contends this action is not barred by the final judgment in Judge Janavs’s case. We disagree.
A.
Collateral estoppel bars relitigation of an issue decided in a prior proceeding if (1) the issue necessarily decided in the prior proceeding is identical to the one sought to be relitigated; (2) the prior proceeding resulted in a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior proceedings; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90; Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481.)
B.
The petition in Judge Janavs’s case sought a writ directing LACERA to reclassify the plaintiffs (including Frank and the class he represented) from “miscellaneous to safety members” for all pension and retirement purposes, and declaring that County police officers are entitled to safety member status. The petitioners alleged that although they and the class they represented were “not specifically enumerated in the statutes,” the County and LACERA had the right and duty to reclassify them. One of the lead lawyers who represented the plaintiffs in Judge Janavs’s cases represents Frank in our case.
Accordingly, the fundamental issue decided by Judge Janavs in rendering judgment on the merits in favor of LACERA was that LACERA did not have jurisdiction to reclassify the County’s police officers from general members to safety members based on the officers’ claim that, because their principal duties involved active law enforcement, they fell within the statutory definition of safety members set forth in section 31469.3. Judge Janavs found that the classification between general members and safety members was a legislative function, that the Legislature had not classified County police officers as safety members, that LACERA had no jurisdiction to change that classification, and that the court had no power to direct LACERA to engage in an act in excess of its jurisdiction. As noted above, Judge Janavs’s decision is final and binding. (Crew v. Pratt (1897) 119 Cal. 139, 151-152 [the duty of the trial court is to adjudicate the issues in dispute and, “having done so . . . , while its conclusion was erroneous and the judgment open to reversal on appeal, yet as no appeal was taken therefrom and as the time therefor has long since expired, it is not now open to collateral attack”].)
Section 31469.3, subdivision (b), defines a safety member as “[a]ny person employed by a county . . . whose principal duties consist of active law enforcement . . . as described in Section 31470.2. . . .” Section 31470.2 provides that “[a]ll sheriffs, undersheriffs, chief deputies sheriff, jailers, turnkeys, deputies sheriff, bailiffs, constables, deputies constable, motorcycle officers, aircraft pilots, heads and assistant heads of all divisions of the office of the sheriff, detectives and investigators in the office of the district attorney, marshals, court service officers . . . and all regularly appointed deputy marshals are eligible.” As can be seen, “police officers” are not mentioned in section 31470.2.
Were we to consider the issue anew, we would reach the same conclusion as did Judge Janavs. Sections 31469.3 and 31470.2 (fn. 5, ante) make it clear that safety members are employees who are both principally engaged in active law enforcement and, as relevant to this case, employed by the Sheriff’s Department. That is precisely the conclusion reached in Medina v. Board of Retirement (2003) 112 Cal.App.4th 864, 866 (holding that LACERA “would contravene statutory authority” if it classified deputy district attorneys as safety members), and the only possible conclusion in this case. In short, Frank’s claim is barred on the merits as well as by the doctrine of collateral estoppel.
Frank does not contend otherwise but claims that, because relitigation may be allowed where it is required by public interest or where an injustice would result, it should be allowed in this case because we are dealing with employee pension rights. The case he cites, Rodgers v. Sargent Controls & Aerospace, supra, 136 Cal.App.4th at page 90 does little more than recite the rule without applying it, and rejects a claim of collateral estoppel because the privity factor was missing, not because of a “public interest” issue. The lone case cited in Rodgers for the public interest exception to collateral estoppel, Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902, does not help Frank because the Supreme Court’s reference to the “public interest” rule is dicta (the issue presented had not been decided in the prior action).
Consumers Lobby, in turn, cites Louis Stores, Inc. v. Department of Alcoholic Beverage Control (1962) 57 Cal.2d 749. As Louis Stores explains, the public interest exception applies where it would be unjust to apply one rule of law to the parties in one action, but a different rule to other parties in another action. That type of unjustness does not exist here because the same rules of law are being applied to county police officers in both cases.
To the extent Frank’s claims arise out of the denial of his request for reclassification by LACERA and his request for a hearing, they are barred by the doctrine of collateral estoppel.
Frank’s tenth cause of action, in which he seeks a writ identical to the writ sought in Judge Janavs’s action, is barred by the doctrine of res judicata. (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 812-813.) With regard to the remaining causes of action, Morton (who was not a party to the action before Judge Janavs but was a member of the class represented by Frank and the other named plaintiffs) and Frank are barred by the doctrine of collateral estoppel from relitigating all issues actually litigated in Judge Janavs’s action. (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1236-1238; Mooney v. Caspari (2006) 138 Cal.App.4th 704, 718-719; Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1069-1070; Old Republic Ins. Co. v. Superior Court (1998) 66 Cal.App.4th 128, 154, disapproved on other grounds in Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 841, fn. 13.)
II.
This brings us to LACERA’s demurrers to the discrimination causes of action. (Sackett v. Wyatt (1973) 32 Cal.App.3d 592, 598, fn. 2 [we review the validity of ruling on a demurrer, not the trial court’s reasons, and will affirm if correct on any ground raised by the demurrer].) Frank contends he is entitled to pursue his employment discrimination causes of action against LACERA. We disagree.
Liability under FEHA exists only when there is an employment relationship between the discriminating party and the victim of the discrimination (Vernon v. State of California (2004) 116 Cal.App.4th 114, 123), and a non-employer who aids and abets the employer may be liable for discrimination only where the employer is or could be liable (id. at pp. 131-133). As Frank concedes, he was employed by the County not LACERA, and LACERA could be liable under FEHA only if the County could be liable. Because Division Four has just held that the County is not liable to Frank on these facts (Frank v. County of Los Angeles, supra, 149 Cal.App.4th 805), it follows that LACERA cannot be liable to Frank on these facts.
Based on our conclusion that Frank was not entitled to any sort of hearing (because LACERA has no jurisdiction to reclassify its members), we necessarily reject Frank’s claims of various constitutional violations arising out of LACERA’s refusal to grant his request for a hearing.
DISPOSITION
The judgment is affirmed. LACERA is entitled to its costs of appeal.
We concur: MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.