Filed 1/2/18 Thompson California State Teachers Retirement System CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
----




SCOTT THOMPSON,

Plaintiff and Appellant,

v.

CALIFORNIA STATE TEACHERS RETIREMENT SYSTEM,

Defendant and Respondent.
C075740

(Super. Ct. No. CV12599 )





Appellant Scott Thompson appeals the trial court’s entry of judgment after an order sustaining Respondent California State Teachers Retirement System’s (CalSTRS) general demurrer to his third amended complaint (sometimes TAC) without leave to amend. Thompson attempts to allege violations of Labor Code section 1102.5; undesignated section references are to the Labor Code. Thompson argues the trial court erred in determining he was required to exhaust his administrative remedies before filing his complaint. Thompson also argues that, if the exhaustion of his administrative remedies was required, his failure to exhaust those remedies was excused by what has become known as “the futility exception.” Finally, he argues for the first time on appeal, that the trial court should not have dismissed the complaint because it stated a viable cause of action for wrongful termination in violation of public policy. We affirm the judgment.
FACTS AND PROCEEDINGS
A. Facts Alleged in the Third Amended Complaint
Thompson’s Third Amended Complaint alleges he was employed by CalSTRS as a Pension Program Analyst. During that employment, he raised concerns about CalSTRS compliance with the anti “Pension Spiking” requirements of California Education Code section 22119.2. These concerns were largely ignored and so Thompson raised them directly with the CalSTRS Board. The Deputy Chief Executive Officer and also the Director of Service Retirement were upset with Thompson for going to the Board and asked for assurances that he would not repeat that behavior.
Thereafter, Thompson raised his concerns with the Board again. The Director of Service Retirement confronted him about this and subsequently told him that both “the CEO and Deputy CEO of Benefits and Services were extremely upset” with Thompson’s behavior. Thompson was asked not to present another memo to the Board at the June 2, 2010 meeting, and he complied with this request.
Later in 2010, Thompson identified another potential case of salary spiking, which he forwarded to the newly hired Assistant Director of Service Retirement Division. As a result, Member Account Services agreed to review the case. Following internal conversations about the case wherein it was agreed that it appeared spiking had occurred, Thompson sent an email notifying his superiors of his intent not to include the salary spike when calculating the member’s benefits. Receiving no response, he modified the benefits so that they would not include the spike. On October 4, 2010, one of Thompson’s supervisors expressed concern about this modification and instructed Thompson to “remove the override of the member’s benefits.” Thompson complied with this request.
Later in October 2010, Thompson was placed on administrative leave without explanation. On January 13, 2011, Thompson received a notice of adverse employment action stating he would be discharged effective January 18, 2011, which he was.
On or about January 13, 2011, Thompson emailed the Deputy CEO and CEO “requesting reconsideration of the decision to terminate” him following his disclosures to the CalSTRS board.
Thompson later filed an appeal with the State Personnel Board, which was denied on February 7, 2011. His request for reconsideration of this denial was itself denied on April 26, 2012.
On or about June 2, 2011, Thompson filed a complaint with the State of California Department of Industrial Relations (DIR). His attorney spoke with DIR on June 25 and had a few other brief conversations.
Thereafter, on July 17, the Deputy Labor Commissioner of DIR called Thompson’s counsel for a “Closing Conference Call” wherein she advised that “the DIR is recommending case closer [sic] and that at this point most cases are withdrawn.” “When asked for clarification about THOMPSON’s remaining procedural options, [the Deputy Labor Commissioner] advised that THOMPSON’s only remaining procedural options were withdrawal or a review and pending dismissal by the Labor Commissioner.” The Deputy Labor Commissioner “advised that none of her recommendations for dismissal had ever been reversed by the Labor Commissioner.” “Only after confirming that the final resolution of Plaintiff’s administrative complaint was the same either way – that the complaint was going to be dismissed – did [Thompson] elect the procedural option to withdraw his claim.”
Thompson filed a claim for damages with the California Victim Compensation and Government Claims Board on or about June 15, 2011, which was rejected in a letter dated September 23, 2011.
B. CalSTRS’ Demurrer to the Third Amended Complaint
On August 23, 2013, CalSTRS demurred to the TAC on the basis that Thompson had failed to exhaust his administrative remedies with the Labor Commissioner prior to filing the complaint, and that he had not adequately pleaded the futility exception to excuse his failure to exhaust those remedies. Thompson argued in opposition that he had adequately pleaded the applicability of the futility exception to the exhaustion requirement, and in any event there was a split of authority on whether section 98.7’s administrative remedies had to be exhausted prior to the institution of a claim for a violation of section 1102.5. The trial court heard argument on the motion and then adopted a tentative ruling that sustained the demurrer without leave to amend. The court thereafter entered the order and judgment in favor of CalSTRS.
DISCUSSION
I
Standard of Review on Demurrer
In reviewing an order sustaining a demurrer, “we independently evaluate the challenged pleading, construing it liberally, giving it a reasonable interpretation, reading it as a whole, and viewing its parts in context. [Citation.] We treat the demurrer as admitting all material facts properly pleaded, but we do not assume the truth of contentions, deductions or conclusions of law. [Citation.] We determine de novo whether the factual allegations of the challenged pleading are adequate to state a cause of action under any legal theory. [Citation.] . . . [¶] . . . [¶]
“The plaintiff[] bear[s] the burden of demonstrating that the demurrer was sustained erroneously. [Citation.] We will affirm the judgment if proper on any grounds stated in the demurrer, whether or not the trial court acted on that ground. [Citation.]
“It is the responsibility of the [plaintiff], to support claims of error with meaningful argument and citation to authority. [Citations.] When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.] In addition, citing cases without any discussion of their application to the present case results in forfeiture. [Citations.] We are not required to examine undeveloped claims or to supply arguments for the litigants. [Citations.]” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 42, 51-52.)
II
The Failure to Exhaust Administrative Remedies
Relying on his interpretation of appellate opinions addressing the issue, Thompson argues the trial court erred in determining that he was required to exhaust available administrative remedies before filing his action under section 1102.5. He argues further, that pursuant to an amendment to section 244 enacted in 2013, after the date of the events described above and after the date he filed this action, he was relieved of any requirement that he exhaust his administrative remedies before filing his action. Finally, he says that, even if he was required to exhaust his administrative remedies, he has sufficiently pleaded the “futility” exception to that requirement.
A. Given the law at the time Thompson filed his action, Thompson was required to exhaust administrative remedies available to him before filing his lawsuit.
It is well-established that where a statute provides an administrative remedy, such remedy must be exhausted as a jurisdictional prerequisite to filing suit. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292-293.)
In Campbell v. Regents of University of California (2005) 35 Cal.4th 311 (Campbell) our high court reiterated that the exhaustion of administrative remedies is a jurisdictional prerequisite to filing an action in court. (Id. at p. 321.) Noting that requiring the exhaustion of administrative remedies serves to (1) mitigate damages; (2) recognize the expertise of the quasi-judicial tribunal; and (3) “promote[] judicial economy” (id. at p. 322) the court held that employees of the University of California who brought an action pursuant to section 1102.5 were required to exhaust internal administrative remedies adopted by the Regents. In reaching that conclusion, the court observed that where an administrative remedy is provided by a statute that remedy must be exhausted before the courts will act. (Id. at p. 321.)
Thompson contends that Campbell does not apply here because the holding in Campbell was limited to a determination of the requirement to exhaust internal administrative remedies established by the University prior to filing suit. But the Campbell court only found that the University’s internal administrative remedies had to be exhausted after determining those internal remedies should be afforded the force of an administrative remedy provided by statute for purposes of the exhaustion analysis. (Campbell, supra, 32 Cal.4th at p. 321.) Thus, Campbell applied the internal administrative remedy as a statutory remedy for purposes of determining whether it had to be exhausted as a prerequisite to the maintenance of a suit under section 1102.5. (Ibid. [“Such a policy is treated as a statute in order to determine whether the exhaustion doctrine applies”]). Nothing in Campbell limited its holding to an exhaustion of internal administrative remedies only and the court reaffirmed the long-standing rule relating to the exhaustion of administrative remedies.
Campbell did not decide whether section 98.7 provides a statutory administrative remedy that must be exhausted before a complaining party files a civil action alleging a section 1102.5 violation.
As to this issue, Thompson argues that we should follow the Second District Court of Appeal’s holding in Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320 (Lloyd) wherein that court decided that the plaintiff’s causes of action alleging statutory violations of the Labor Code there were not barred by his failure to exhaust the remedies set forth in section 98.7. We disagree with that holding.
In Lloyd, the court, relying on the language of subsection (f) of section 98.7 which says “ ‘The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other law,’ ” held that section 98.7 merely provided an employee with an additional remedy that an employee could choose to pursue or not. (Lloyd, supra, 172 Cal.App.4th at p. 331.)
Undercutting the Lloyd court’s decision on this point are decisions of the Court of Appeal that hold that an available administrative remedy must be exhausted, even if the statutory or other language providing that remedy is stated in permissive terms. (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 734-735; Morton v. Superior Court (1970) 9 Cal.App.3d 977, 982.) And, we note, the Lloyd court did not discuss the significance of Campbell and relied on cases predating the Supreme Court’s decision in Campbell. Finally, Lloyd held that requiring exhaustion under section 98.7 would be inconsistent with the Labor Code Private Attorneys General Act (PAGA) 2004 (§ 2698 et seq.) a consideration that is not applicable here. (Lloyd, supra, 172 Cal.App.4th at p. 332.)
Given all of the above, we reject this portion of the holding in Lloyd and decide that, given Campbell’s strong reaffirmation of the doctrine of exhaustion of administrative remedies, Thompson was required to exhaust each of the administrative remedies available to him, including those remedies provided by section 98.7 before turning to the courts for relief.
B. The Enactment of Labor Code Section 244
In 2013, after Thompson filed the present action, the Legislature, by way of Senate Bill 666, enacted section 244 subdivision (a) of the Labor Code which provides: “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.” This statute took effect on January 1, 2014.
In 2013, the Legislature amended section 98.7 by adding subsection (g) which reads: “In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.”
Thompson argues that the above noted amendments to the Labor Code simply clarified existing law and, thus, he was not required to exhaust his remedies under section 98.7 before filing his action even though that filing predated these amendments. We disagree.
“Generally, statutes operate prospectively only.” (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 840.) This is so unless the statute is passed with an express retroactivity provision or unless it is otherwise clear that the Legislature intended the new statute to be applied retroactively. (Id. at p. 841.)
Section 244 and the revisions to section 98.7 do not expressly state that the law there enacted was intended to apply retroactively. Even so, Thompson urges us to find that the legislation history leading up to those enactments demonstrate that it was, indeed, the intent of the Legislature to apply the laws retroactively. Specifically, citing McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, he argues that the pertinent legislative history makes it clear the Legislature was doing no more than clarifying existing law as opposed to making new law and, thus, the question of retrospectivity does not arise.
We recognize that a summary following a June 18, 2013, meeting of the Assembly Committee on Judiciary regarding Senate Bill 666, stated: “this bill [¶] . . . [¶] . . . [c]larifies that an employee or job applicant is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of the Labor Code, unless the provision under which the action is brought expressly requires exhaustion of an administrative remedy.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended May 7, 2013, p. 2.)
Even so, the Legislative Counsel’s website shows 14 analyses of Senate Bill 666. (See California Legislative Information, Bill Information < http://leginfo.legislature.ca.gov/> [as of Jan. 2, 2018].) Of the 10 analyses that mention the exhaustion provision, four state that the provision “clarifies” the law. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended May 7, 2013, p. 2; see, e.g., Assem. Com. on Judiciary, Analysis of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended Sept. 4, 2013; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended Aug. 22, 2013; Sen. Com. on Judiciary, Analysis of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended Apr. 11, 2013.) The other six state that the bill “Provides that it is not necessary for an individual to exhaust administrative remedies or procedures. . . .” (Assem. Com. on Labor and Employment, Analysis of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended May 7, 2013; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill. No. 666. (2013–2014 Reg. Sess.) as amended May 7, 2013; see, e.g., Assem. Com. on Appropriations, Analysis of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended Aug. 5, 2013; Sen. Com. on Appropriations, Fiscal Summary of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended May 7, 2013, May 23, 2013; Sen. Com. on Appropriations, Fiscal Summary of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended May 7, 2013, May 20, 2013; Sen. Com. on Labor and Industrial Relations, Analysis of Sen. Bill No. 666 (2013–2014 Reg. Sess.) as amended Apr. 11, 2013.) Based upon this legislative history, we cannot say that it is “clear” that the Legislature, by these enactments, intended only to clarify existing law.
“A court engaged in statutory construction looks to ‘all pertinent circumstances and considerations in deciding whether an amendment is a modification or clarification of a statute.’ [Citation.] And particularly when there is no definitive ‘clarifying’ expression by the Legislature in the amendments themselves, we will presume that a substantial or material statutory change . . . bespeaks legislative intention to change, and not just clarify, the law. [Citations.]” (Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1197.)
After briefing closed in this matter, the Court of Appeal, Second District, Division Four decided Sheridan v. Touchstone Television Productions (2015) 241 Cal.App.4th 508 (Sheridan). In Sheridan, the court held that the plaintiff was not required to exhaust her administrative remedies before bringing an action under section 6310 of the Labor Code and that the later amendments to section 98.7 that specifically stated that exhaustion was not required merely clarified the law and therefore were changes to the law that acted only prospectively. (Id. at p. 513.)
The Sheridan court’s analysis was essentially the same as, and found support in, Lloyd. Because we disagree with that analysis, Sheridan is of no assistance to appellant here.
Given the above, we hold that the enactment of section 244 and the amendments to section 98.7 were intended only to apply prospectively. Thompson’s action, having been filed before those changes in the law, cannot benefit from them.
C. The Futility Exception
Thompson argues that, if he was required to exhaust his administrative remedies before filing his action, he is excused from doing so based on the “futility exception” to that requirement.
Relief from failure to exhaust administrative remedies on the basis of futility is a very narrow exception, which is only available upon a showing that the administrative agency had predetermined its ruling in that particular case. (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418.) It is not enough that statistically the likelihood of prevailing in the administrative proceeding was slim. (Imagistics Internat., Inc. v. Department of General Services (2007) 150 Cal.App.4th 581, 590 [rejecting that historical statistics showed the required bid protest was futile].) Thus, Thompson’s allegations his attorney was told by the Deputy Labor Commissioner “that none of her recommendations for dismissal had ever been reversed by the Labor Commissioner” did not affirmatively demonstrate that the Labor Commissioner had predetermined his individual claim. As such, he has not adequately pleaded the futility of exhausting his section 98.7 administrative remedy. This is unlike the Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 262 wherein the court found futility because the same administrator would be reviewing the same record for a decision reached on the same evidence previously introduced in another proceeding predating the challenged employment action.
III
Wrongful Termination in Violation of Public Policy
As an alternative basis for reversal of the order sustaining the demurrer, Thompson argues that the trial court erred in dismissing his claim for wrongful termination in violation of public policy.
First, a review of the record reveals that Thompson never raised this issue in the trial court. But, more importantly and fatal to his argument here, Thompson’s complaint alleges only a single cause of action denominated “Wrongful Termination in Violation of Public Policy”/Violation of California Labor Code section 1102.5. The allegations that follow do not plead a termination in violation of public policy except to enlist the provisions of section 1102.5. Thompson’s contention that he is entitled to pursue a civil claim for termination in violation of public policy generally comes too late.
DISPOSITION
We affirm the judgment. Respondent is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278, subd. (a).)



HULL , J.



We concur:



NICHOLSON , Acting P. J.



RENNER , J.