Burwell v. County of Los Angeles

Filed 5/9/07 Burwell v. County of Los Angeles CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory Alarcon, Judge. Affirmed.

The Luti Law Firm and Anthony N. Luti for Plaintiff and Appellant.

Franscell, Strickland, Roberts & Lawrence and Jin S. Choi for Defendants and Respondents.

INTRODUCTION

Plaintiff Ernest Burwell appeals from a grant of summary judgment on Burwells complaint for wrongful termination in violation of public policy, violation of Labor Code section 1102.5, and wrongful discipline in violation of public policy. The trial court granted summary judgment because Burwell did not exhaust administrative remedies before filing his complaint. Burwell has failed to provide a record on appeal adequate to review the lower courts rulings, and has not shown that the trial court erroneously struck a declaration Burwell untimely filed with his new trial motion. Thus Burwell provides no evidence showing that a triable issue of fact existed as to whether he had no available internal administrative remedy, whether pursuit of such administrative remedy would be inadequate, futile, or cause irreparable injury, and whether he satisfied the internal grievance procedures available to him. Burwell also fails to show that his section 1102.5 claim was exempt from the requirement that he exhaust administrative remedies before proceeding to suit. We affirm the judgment for defendants.

STANDARD OF REVIEW

A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) We review the trial courts decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] . . . [O]nce a moving defendant has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action[.] (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)

FACTUAL AND PROCEDURAL HISTORY

Defendant County of Los Angeles employed plaintiff Ernest Burwell as a deputy sheriff and K-9 handler. Burwell believed a fellow sheriffs deputy, defendant Patrick Maxwell, engaged in wrongful conduct and Burwell reported that conduct to his superiors. No disciplinary action was taken against Maxwell, and Burwell was removed from his K-9 trainer position and reassigned. Burwell also received inferior performance and promotion evaluations and suffered alleged discriminatory action. Burwell believed that the reassignment and inferior evaluations resulted from defendants retaliation against him for reporting Maxwells conduct to his superiors.

On December 13, 2004, Burwell filed a complaint against the County of Los Angeles, Los Angeles County Sheriff Leroy D. Baca, Maxwell, and Thomas Spencer. The complaint alleged causes of action for wrongful termination in violation of public policy, violation of Labor Code section 1102.5, and wrongful discipline in violation of public policy.

Defendants moved for summary judgment on September 15, 2005, and Burwell filed opposition on October 7, 2005. Neither pleading is in the record on appeal. The trial courts December 1, 2005, order granting summary judgment set forth the following facts. Maxwell and Spencer were superiors of Burwell, whose complaint alleged that after he requested investigations into Maxwells role in lethal police actions, he suffered retaliation and constructive termination.

Defendants summary judgment motion argued that Burwell failed to exhaust his administrative remedies. Defendants provided evidence that as of July 7, 2005, Burwell and his union representative continued to exchange letters about administrative steps with Sheriffs Department members and the Employee Relations Unit. The July 7, 2005, letter stated that Burwell intended to waive Step II (Review Board Hearing) of the internal grievance procedure. In his deposition, Burwell admitted he still had administrative claims or grievances pending against the Sheriffs Department or the County. Before filing his complaint on December 13, 2004, Burwell did not initiate or exhaust administrative remedies for any incident occurring since January 1, 2001.

Defendants alleged that Burwells receipt of a salary from the Sheriffs Department or the County of Los Angeles did not preclude him from initiating and exhausting grievance procedures and related administrative remedies for his two grievances or for any other work-related incident, including grievances pertaining to purported retaliation and discrimination against him for whistle-blowing.

Burwell admitted that he filed a formal grievance on December 27, 2004, and that he filed a grievance on January 1, 2005, regarding his relief of duty and that the latter grievance was still pending because the County refused to process it. The trial court found that these admissions showed that Burwell had not met his burden of showing that a triable issue of material fact existed as to whether he exhausted his administrative remedies before filing his complaint. The trial court granted defendants motion for summary judgment.

Plaintiff moved for a new trial. Defendants filed opposition on December 22, 2005. Plaintiff filed supplemental points and authorities in support of the new trial motion on December 30, 2005. Defendants moved to strike the supplemental points and authorities as prohibited by former California Rules of Court, rule 236.5 (now rule 3.1600). The trial court granted defendants motion to strike and denied the new trial motion because Burwell provided no authority that his good faith efforts to exhaust administrative remedies before commencing this civil action constituted compliance with the exhaustion of remedies doctrine.

On January 4, 2006, judgment was entered in favor of defendants.

Burwell filed a timely notice of appeal from the judgment.

ISSUE

Burwell claims on appeal that triable issues of material fact exist as to whether he exhausted his administrative remedies before filing his complaint.

DISCUSSION

1. The Trial Courts Grant of Summary Judgment

In granting summary judgment, the trial court relied on the ground that where a statute or administrative agency rule provides an adequate administrative remedy, relief must be sought from the administrative body, and this remedy must be exhausted, before the courts will act. (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 722.) Exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70.)

The trial court found that defendants had met their burden of showing that Burwell had failed to exhaust his administrative remedies with respect to any of his claims. The trial court found that this evidence satisfied defendants burden in moving for summary judgment, and shifted the burden to Burwell to show that a triable issue of material fact existed. The trial court found that plaintiff did not meet this burden, and concluded that the evidence, including Burwells admissions that he had administrative procedures ongoing in July 2005, showed that Burwell had not created a triable issue of fact as to whether he had exhausted his administrative remedies.

2. Burwell Has Provided No Evidence That No Administrative Remedy

Existed or That Exhaustion of His Administrative Remedy Would Have Been Futile

On appeal Burwell claims that the requirement that a plaintiff must exhaust administrative remedies before seeking relief in court does not apply where no internal or administrative remedy is available (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1151), and that the failure to exhaust administrative remedies is excused if it is clear that exhaustion would be futile (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 936).

Burwells failure to provide his opposition to the summary judgment in the record on appeal prevents review of this claim. It is the appellants responsibility to demonstrate error affirmatively by supporting triable issues claimed to be present by citation to the record and supporting authority. Review is limited to issues adequately raised and briefed. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.) In the absence of an adequate record that affirmatively shows error, a judgment is presumed to be correct. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)

Moreover, in arguing that no internal administrative remedy was available for Burwell to exhaust, he cites a declaration from Edward Camarillo, Assistant Executive Director of the Association for Los Angeles Deputy Sheriffs, the sheriffs deputies union. Camarillos declaration stated that no provision of the parties Memorandum of Understanding prohibited the Sheriffs Department from retaliating against a deputy sheriff who is a whistle-blower. Burwell claims that the trial courts failure to consider Camarillos declaration was an abuse of discretion. We disagree.

First, Camarillos declaration was an attachment to Burwells supplemental points and authorities in support of his new trial motion. Thus that declaration was not before the trial court in ruling on the summary judgment motion. This court reviews only papers properly before the trial court in the summary judgment proceeding.

Second, the trial court granted a defense motion to strike Burwells supplemental points and authorities, which attached Camarillos declaration, as barred by former California Rules of Court, rule 236.5 (current rule 3.1600). That rule requires a party moving for a new trial to file a memorandum supporting the motion within 10 days after filing the notice of intention to move for a new trial.[1] Burwell does not argue that this ruling was an abuse of discretion. This court defers to a trial courts exercise of its discretion to regulate submission of materials in connection with pending motions. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, overruled on unrelated ground, Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)

Third, an application for a new trial based on newly discovered evidence must show that the applicant could not, with reasonable diligence, have discovered the newly discovered evidence and produced it at trial. (Code Civ. Proc., 657, [] (4).) Burwell did not address this statutory requirement. A new trial motion on the ground of newly discovered evidence is within the trial courts discretion and will not be disturbed on appeal unless a clear abuse of discretion is shown. (Elysium Institute, Inc. v. County of Los Angeles (1991) 232 Cal.App.3d 408, 438.) We find no abuse of discretion.

For all these reasons it was not error for the trial court to strike this evidence. This reviewing court does not consider evidence to which objections have been made and sustained. (Gin v. Pennsylvania Life Ins. Co. (2005) 134 Cal.App.4th 939, 946.)

Since Camarillos declaration is the only evidence Burwell cites on appeal in arguing that no internal administrative remedy was available and that pursuit of such administrative remedy would be inadequate, futile, or cause irreparable injury, we conclude that Burwell has not shown that a triable issue of fact existed as to this issue.

3. Burwell Has Not Shown That There Was a Triable Issue of Fact as to

Whether He Satisfied the Internal Grievance Procedures Available to Him

Burwell argues that a triable issue of material fact exists as to whether he satisfied the minimal internal grievance procedures that were available to him.

Burwell cites statements in the trial courts order overruling defendants demurrer. A demurrer, however, tests the legal sufficiency of factual allegations in a complaint. A court reviewing the sufficiency of a complaint against a general demurrer treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42.) A ruling on a demurrer determines a legal issue on the basis of assumed facts, i.e., those properly alleged in the complaint, regardless of whether they ultimately prove to be true. (County of Los Angeles v. Farmers Ins. Exchange (1982) 132 Cal.App.3d 77, 83.) The order overruling defendants demurrer found that the complaint alleged, with adequate specificity, that Burwell exhausted his administrative remedies and thus the complaint was legally sufficient as to this issue. The order overruling the demurrer, however, did not make factual findings in an evidentiary hearing, and any conclusions it reached did not bind the trial court or preclude it from later finding that no triable issue of fact existed as to whether Burwell had exhausted the internal grievance procedures available to him.

The order overruling the demurrer was not law of the case, as Burwell argues. The law of the case doctrine applies only to a prior decision of an appellate court in the same case, not to a trial courts own previous ruling. (Tippett v. Terich (1995) 37 Cal.App.4th 1517, 1523, fn. 2.)

On appeal, Burwell cites only the March 15, 2005, order overruling the demurrer. That is not evidence. Burwell has not shown that there was a triable issue of fact as to whether he satisfied the internal grievance procedures available to him.

4. Burwells Labor Code Section 1102.5 Action Was Subject to

the Requirement That He Exhaust Administrative Remedies Before Filing His Complaint

Burwell claims that litigation attempting to enforce compliance with a controlling statute, as distinguished from enforcing a collective bargaining provision, allows a party to avoid exhausting administrative remedies, such as grievance procedures, citing Tracy Educators Assn. v. Superior Court (2002) 96 Cal.App.4th 530. Tracy Educators Assn., however, held that because persons were not compelled to arbitrate controversies they had not agreed to arbitrate, and the arbitration provision of a Master Agreement between a teachers union and the school district did not cover this dispute, the Association was not required to arbitrate the matter before seeking relief in the trial court. (Id. at p. 538.)

Burwell identifies only one cause of action as subject to this rule: his cause of action for violation of Labor Code section 1102.5[2] arising from retaliation for whistle-blowing about illegal activities in the Sheriffs Department. Although section 1102.5 stated no requirement that a plaintiff must first exhaust administrative remedies, that silence did not reflect a legislative intent to eliminate the exhaustion of administrative remedies requirement. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 329.) Campbell held that a public employee claiming a violation of section 1102.5 was required to exhaust administrative remedies before proceeding to suit. (Campbell, at pp. 317, 331.) That holding controls this case.[3] Therefore no triable issue of fact exists as to Burwells section 1102.5 cause of action.

DISPOSITION

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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[1] California Rules of Court, rule 3.1600, subdivision (a) states: Within 10 days after filing notice of intention to move for a new trial in a civil case, the moving party must serve and file a memorandum in support of the motion, and within 10 days thereafter any adverse party may serve and file a memorandum in reply.

[2] Labor Code section 1102.5, subdivision (b), states: An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation. Subdivision (e) states: A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).

[3] Burwell argued that in his causes of action for wrongful termination in violation of public policy and for wrongful discipline in violation of public policy, he was not required to exhaust administrative remedies, citing Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1702-1706. Burwell, however, did not make this argument or cite Leibert in his opening brief or reply brief, and instead made this argument and cited Leibert for the first time in oral argument. This court therefore need not consider this argument. (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 854; Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027, fn. 2.)