[Citations.] . . . [¶] Second, the procedures of the arbitration must allow for the full litigation and fair adjudication of the FEHA claim." (Camargo v. California Portland Cement Co. (2001) 86 Cal.App.4th 995, 1018, fn. omitted (Camargo); see Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 80 [waiver of an employee's right to have employment discrimination claims heard in a judicial forum must be " 'clear and unmistakable' "; intent to waive statutorily protected right to a judicial forum must be " ' "explicitly stated" ' "]; Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1085-1086 (Ortega); Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 399, 406 [distinguishing binding effect of findings made in union grievance procedures from those made in quasi-judicial administrative proceedings].) The union MOU here contains a general prohibition against discrimination, but says nothing directly about grievance of such claims.
In Otrega v. Contra Costa Cmty. Coll. Dist., the court reversed a trial court's dismissal of non-statutory claims for IIED, wrongful termination, and negligent supervision arising out of an alleged violation of the California Fair Employment and Housing Act. See 67 Cal. Rptr. 3d 832, 842 (Ct. App. 2007). The court ruled that the plaintiff did not have to exhaust administrative remedies as to the non-statutory claims simply because they arose out of statutorily created rights that themselves require administrative exhaustion.
"An arbitration agreement exists where there is '(1) a third party decision maker; (2) a mechanism for ensuring neutrality with respect to the rendering of the decision; (3) a decision maker who is chosen by the parties; (4) an opportunity for both parties to be heard, and (5) a binding decision.'" (Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1084-1085.) "The requirement of a neutral, third party decision maker is satisfied when, as here, the party-affiliated decision makers jointly select a neutral to cast any necessary, deciding vote."
(See Evid. Code §§ 451 [mandatory judicial notice], 452 [permissive judicial notice]; rule 8.252(a)(1) ["To obtain judicial notice by a reviewing court under Evidence Code section 459, a party must serve and file a separate motion with a proposed order."]; Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1086, fn. 9 (Ortega) [denying "on procedural grounds" a request for judicial notice set forth in the appellant's opening brief].)
We affirm the trial court's ruling that administrative exhaustion was required. We review an order sustaining a demurrer de novo. (Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1080.) "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.
If the order had not recited it was without prejudice, the dismissal for failure to exhaust administrative remedies would be immediately appealable. (See, e.g., Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 317 [reviewing order sustaining demurrer without leave to amend and dismissal of complaint for failure to exhaust administrative remedies]; Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1086 [reversing order dismissing complaint for failure to exhaust administrative remedies].) Following such a dismissal, however, and putting aside the question of the binding or preclusive effect of any factual findings made in the administrative proceedings not set aside in an administrative mandamus proceeding pursuant to Code of Civil Procedure section 1094.5, Heidary would be able to file a new action reasserting the FEHA and FEHA-related tort claims alleged in the original action once he had exhausted available administrative remedies.
Because the probate court's order denying Suleman's motion to dismiss Petersen's petition for appointment of a guardian raises purely legal issues, our review is de novo. ( Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1080 [ 67 Cal.Rptr.3d 832].) What information do we have before us? Petersen is not a relative under section 1510, subdivision (a).
Several courts have recognized the risks of pursuing both an internal administrative remedy and a FEHA civil action given the possible application of collateral estoppel in the FEHA action to knock out a key element before trial. ( Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1086 [ 67 Cal.Rptr.3d 832]; Castillo v. City of Los Angeles, supra, 92 Cal.App.4th at pp. 479-480; Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1143-1144 [ 20 Cal.Rptr.3d 598] [if state employee chooses to pursue both remedies, there is risk that FEHA claim may no longer be viable].) We now consider whether the Board's findings in this case preclude George's FEHA claim.
Only by a successful challenge to the adverse administrative findings through a petition for a writ of administrative mandamus may the employee escape their binding effect in a lawsuit for damages. (Id. at p. 182; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089-1090; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70, 76; Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 482-485; Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1083; Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 724-725.) To be sure, not all administrative findings have preclusive effect.
Nor did Hyon demonstrate that an amendment would cure the defect in his cross-complaint. ( Ortega v. Contra Costa Community College Dist. (2007) 156 Cal.App.4th 1073, 1080 [ 67 Cal.Rptr.3d 832]; Ford v. Pacific Gas Electric Co. (1997) 60 Cal.App.4th 696, 705 [ 70 Cal.Rptr.2d 359].) We are left with a pleading that did not state causes of action for legal malpractice or breach of fiduciary duty.