OHTON v. BOARD OF TRUSTEES OF THE CALIFORNIASTATEUNIVERSITY

Filed 3/16/07

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

STORY CONTINUED FROM PART I

"According to Mr. Adler, Interim Director Bartow made this organizational change also because 'the relationship between Coach Craft and Coach Ohton seems strained beyond a tolerable level.' Coach Craft knew from the time he was hired that you did not support his appointment, something you do not deny. Furthermore, he determined within a few months as coach that you were opposed to his retention of offensive line coach Damon Baldwin. The tension between you and Mr. Baldwin was apparent to the other coaches and to the players, and negatively impacted the football program. [] . . . []

"Mr. Adler corroborated Coach Craft's assertion that he wanted to change the emphasis of the football team's conditioning, that you were unwilling to support this change in emphasis, notwithstanding several chances to do so and that you had a general antipathy toward the coach, all of which predates the audit. All of these support the decision to replace you as strength and conditioning coach for the football team. I also note that you remain conditioning coach for the other teams, whose coaches are comfortable with this arrangement."

However, McClain determined that the decision to reduce Ohton's work hours was "minor retaliation." In her words, "Mr. Adler concluded that the decision to restrict your hours in the weight room and on campus was based in part on comments contained in your written audit statement as well as your refusal to 'voluntarily' relinquish football. This decision was ostensibly to prevent you from interacting with the football players. Mr. Adler, however, learned that the players practiced until 5:15 [p.m.]or later and were required to workout in the weight room after practice. He therefore concluded that this action was primarily punitive and in response to your non-protected refusal to relinquish football. However, I have concluded you did engage in protected disclosure and since there is no legitimate business reason for this action, I conclude changing your hours was retaliatory."

It is undisputed that CSU formally reinstated Ohton's hours of access to the weight room and campus on February 4, 2004. Ohton did not challenge the university's final decision by filing a petition for a writ of mandate.

Ohton's Civil Complaint and the Summary Judgment Motion

On February 13, 2004, Ohton filed a civil complaint that alleged a single cause of action: retaliation in violation of section 8547 et seq. The complaint was based on essentially the same facts addressed in Ohton's administrative complaint. It also reiterated additional facts, first adduced in Ohton's letter to McClain in response to Adler's report, regarding Ohton's contention CSU conducted an "inadequate and incomplete investigation." The complaint also mentioned that CSU failed to take any disciplinary action in response to its finding of minor retaliation, and continued to retaliate against him after the conclusion of the investigation.

The defendants filed motions for summary judgment on the grounds that CSU had timely addressed Ohton's administrative complaint and that Ohton's complaint was barred by his failure to exhaust his judicial and administrative remedies.^[1]

Ohton's opposition included a declaration, dated February 5, 2004, by a booster who affirmed that in the summer of 2003, he witnessed Craft's public drunkenness. He informed Roush about it in response to her inquiry in a phone call she made to him. The booster declared, "I told Ms. Roush what I knew. She told me that she wanted me to come in and sign documents. I explained to Ms. Roush that I would provide this testimony confidentially to her, but only if the others, the administrative employees in the athletic department who would corroborate my information, failed to come forward. I was hesitant to come forward, because I had a son who played high school football and I wanted him to be recruited by SDSU. I explained this to Ms. Roush and I thought she would be sensitive to my situation." The booster later learned from members of the athletic department that Roush had breached his confidence. He was angry and left a telephone message to Ms. Roush saying so, but he never heard from her again.

In addition, Ohton provided deposition testimony of Maria Medina Santos, CSU's senior director of employee relations, in which she stated she prepared the initial draft of McClain's final decision letter to Ohton, which stated, "Ultimately the one booster who admitted conveying this information [regarding allegations of Craft's public drunkenness] to you, after equivocating, refused to cooperate with the investigation." McClain's final report replaced this statement with, "When Vice President Roush contacted this booster, he denied having 'seen' this alleged incident and referred Vice President Roush to other individuals, who also denied witnessing any such incident." Medina Santos testified she did not recall the reason for the changed language in the final draft.

Further, Ohton provided deposition testimony of Adler conducted in discovery in the civil suit, that he assigned a preponderance of the evidence burden of proof to CSU's claim of justification for its decision to remove Ohton as strength and conditioning coach for the football team and reduce his hours.

The court granted summary judgment on the ground that CSU had timely addressed Ohton's complaint.

DISCUSSION

I. Standard of Review

"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) This court applies the same analysis as the trial court. We identify the issues framed by the pleadings, determine whether the moving party has negated the nonmoving party's claims, and determine whether the opposition has demonstrated the existence of a triable issue of material fact. Summary judgment is appropriate if all the papers submitted show there is no triable issue of fact and that the moving party is entitled to judgment as a matter of law. (Code of Civ. Proc., 437c, subd. (c).)

We review issues of statutory construction de novo. (Amdahl Corp. v. County of Santa Clara (2004) 116 Cal.App.4th 604, 611.) "Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the consequences that will flow from a particular interpretation." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.)

The term "satisfactorily addressed" is not defined in the statute. To begin, we

reject CSU's interpretation of the term, "satisfactorily addressed," which it purports to base on legislative history. CSU claims the term "must be interpreted as simply requiring that the complaint be addressed and a decision reached under the applicable administrative procedures within 18 months." Under this interpretation, in effect, the words "satisfactorily addressed" are read out of the statute, and instead, the narrow focus is on CSU's timely completion of the investigation.

II Section 8547.12

We recognize the legislative history of section 8547.12 subdivision (c) states the CSU whistleblower protection statute should track section 8547.10, subdivision (c), which applies to employees of the California State University.^[2] Specifically, the Report of Assembly Committee on Consumer Protection, Government Efficiency and Economic Development on Senate Bill No. 2097 (2006) states, "This bill would set up an in-house grievance procedure and legal remedies for CSU employees who suffer reprisal for disclosing improper governmental activities similar to that provided to [California StateUniversity] employees." (Italics added.) Although section 8547.12, subdivision (c) is almost identical to section 8547.10, subdivision (c),^[3]Ohton and amicus^[4]point out section 8547.12, subdivision (c) differs in one significant regard it alone contains the provision that the complainant may seek a remedy if the university has not "satisfactorily addressed" the complaint. Therefore, the cases CSU relies upon that interpret section 8547.10, subdivision (c) are not dispositive.^[5] For these reasons, we agree with Ohton that the court erred in concluding that CSU had timely addressed the complaint, and Ohton was therefore barred from pursuing a civil remedy for damages.

In addressing the meaning of "satisfactorily addressed," Ohton advances two alternative interpretations. The first is labeled as "the subjective satisfaction of the whistleblower. . . . A whistleblower who believes that the decision made by a university does not satisfactorily address his or her complaint would not be precluded from seeking other subsequent remedies." This appears to be a recasting of the only interpretation Ohton advanced before the trial court: "The requirement of a 'satisfactory' result must be in respect to a whistleblower's decision. Otherwise the statute's guarantee of a civil remedy would be meaningless." Ohton's second interpretation asserts "the use of the term 'satisfactorily' in section 8547.12 imputes a clear obligation on CSU to act in objective good faith in fulfilling its duties under the CWPA."

Ohton's subjective interpretation of "satisfactorily addressed" can be rejected out of hand. Such an approach would render the statutory and administrative proceedings mandated by section 8547.12 and EO 822 nugatory; a complainant need only assert that he is unhappy with the decision in order to overturn it. We find no indication that the legislature intended such a farfetched standard. For reasons detailed below, Ohton may be closer to the mark with his "objective good faith standard."

Contrary to Ohton's contention, section 8547.12 does not "guarantee" the complainant a civil remedy. Before a civil complaint for damages can proceed, the complainant is required to establish that CSU has not "satisfactorily addressed the complaint." Ohton is silent on how this is to be accomplished, either in pleading or procedurally. We are not allowed such latitude.

In interpreting the term "satisfactorily addressed" it is critical that we bear in mind that we are dealing with an administrative proceeding. Standards for judging the legal sufficiency of an administrative proceeding are well established under mandamus.

"[A] cardinal rule of statutory construction [is] that the Legislature is presumed to have knowledge of existing judicial decisions and to have enacted statutes in their light." (Dominey v. Department of Personnel Administration (1988) 205 Cal.App.3d 729, 742.) There is no reason to conclude either from the words of the statute or its legislative history that the words "satisfactorily addressed" signaled a departure from well established mandamus standards and procedures.

"Judicial review of most public agency decisions is obtained by a proceeding for a writ of ordinary or administrative mandate. [Citation.] The applicable type of mandate is determined by the nature of the administrative action or decision. [Citation.] Usually, quasi-legislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate. [Citation.] [] 'Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts.' [Citation.] . . . [A]dministrative mandate is available 'only if the decision[] resulted from a "proceeding in which by law: (1) a hearing is required to be given, (2) evidence is required to be taken, and (3) discretion in the decision of facts is vested in the agency." ' [Citations] '[O]rdinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.' " (McGillv. Regents of University of California (1996) 44 Cal.App.4th 1776, 1785, italics omitted.) "[T]he absence of an evidentiary hearing does not make mandate inapplicable; it merely affects the form of mandate that must be invoked." (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 849.)

The standard of review used in an ordinary writ case is abuse of discretion. "The scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action. . . .' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297, quoted in Horsford v. Board of Trustees of CaliforniaStateUniversity. (2005) 132 Cal.App.4th 359, 393.) "Unlike broad scope of review provided in administrative mandamus proceedings, review by ordinary mandamus is confined to an examination of the agency proceedings to determine whether the action taken is arbitrary, capricious, or entirely lacking evidentiary support, or whether it failed to conform to procedures required by law." (Stauffer Chemical Co. v. Air Resources Board (1982) 128 Cal.App.3d 789, 794.)

Code of Civil Procedure section 1094.5 governs judicial review by administrative mandate of any final order or decision rendered by a state or local agency. (Bixby v. Pierno (1971) 4 Cal.3d 130, 137.) Code of Civil Procedure section 1094.5, subdivision (b) provides that judicial review of such a decision shall "extend to the questions whether the [administrative agency] has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the [administrative agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence."

The parties have fully briefed the issue of whether Ohton was required to exhaust his judicial and administrative remedies before pursuing an action for damages. We reject Ohton's contention that he was not required to challenge the CSU proceeding and final decision by filing a petition for writ of mandate. There is no indication from the statute or its legislative history that an exception to the requirement for a writ of mandate was contemplated when section 8547.12 was enacted. CSU correctly notes "courts should not presume the Legislature in enactment of statutes intends to overthrow long-established principles of law unless that intention is made clearly to appear either by express declaration or by necessary implication." (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777.) Abandonment of the mandamus requirement is not implied by the granting of a civil remedy because the statute requires the complainant to establish that CSU has not "satisfactorily addressed" his complaint as a condition precedent to sue for damages. We note that there is no procedural bar to combining a petition for mandamus with a complaint for damages. (Moreheart v. County of Santa Barbara (1994) 7 Cal.4th 725, 735 [the court raised no objection to this practice, this case is cited with approval in California Civil Writ Practice (2006 CEB 3d ed) 6.54, p. 256].) Further, Ohton's claim that writ proceedings were not contemplated under section 8547.12 must be rejected because such an interpretation would act to deprive many complainants of the protection of the statute. Not all complainants seek only damages: some may seek only to compel CSU to restore privileges and positions removed by retaliation; others may seek to compel both restoration and damages.

The California Supreme Court discussed the purpose of such writ review in terms of exhaustion of judicial remedies as follows: "[I]n Westlake Community Hosp. v. Superior Court [(1976)] 17 Cal.3d 465 . . ., this court held that unless a party to a quasi-judicial proceeding challenges the agency's adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions. This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. [Citation.] Exhaustion of administrative remedies is 'a jurisdictional prerequisite to resort to the courts.' [Citation.] Exhaustion of judicial remedies, on the other hand is necessary to avoid giving binding 'effect to the administrative agency's decision because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action.' " (Johnson v. City of Loma Linda(2000) 24 Cal.4th 61, 69-70.)

The public policies that support the doctrine of res judicata include, "giving certainty to legal proceedings, preventing parties from being unfairly subjected to repetitive litigation, and preserving judicial resources." (Johnson, supra, 24 Cal.4th at

p. 77.) Moreover, "[r]efusing to give binding effect to the findings of administrative agencies in quasi-judicial proceedings would . . . undermine the efficacy of such proceedings, rendering them in many cases little more than rehearsals for litigation." (Id. at p. 72.)

Ohton steadfastly claims the procedural deficiencies of EO 822 excuse his failure to seek writ review. Ohton relies on Payne v. Anaheim Memorial Medical Center (2005) 130 Cal.App.4th 729, 741 (Payne) to support his contention CSU denied him due process protections and the right to actually litigate his claims. We evaluate Ohton's criticisms of EO 822 in light of the standards for due process in the administrative setting. "To be adequate, a remedy must afford the individual fair procedur[al] rights. [Citation.] . . . At a minimum, however, fair procedure requires adequate notice of the administrative action proposed or taken by the group or institution and a reasonable opportunity to be heard." (Payne, at p. 741.)

Ohton's attempts to compare CSU's procedure to that in Payne are unavailing. The plaintiff in that case, an African-American medical doctor, complained about wrongdoing at Anaheim Memorial by a radiologist, Dr. Siegel, and other personnel. (Payne, supra,130 Cal.App.4th at pp. 733-734.) The court of appeal concluded that under the applicable regulations, "Payne had only the right to complain about . . . Siegel's comment, and about his general perception that hospital personnel were discriminating against him (and his patients) based upon racial considerations. He did so, both directly and through his attorney. However, once he had done so, the medical staff bylaws guaranteed him nothing more. He had no right to compel anyone to take his assertions seriously, let alone to examine them in the context of a quasi-judicial proceeding." (Id. at p. 739.) On that basis, the court concluded, "But having offered Payne no 'quasi judicial remedy' to address his grievance, we cannot permit Anaheim Memorial to assert the exhaustion doctrine as a means of depriving him of an actual judicial remedy." (Id. at p. 743.) EO 822 provided Ohton a meaningful opportunity to fully present his complaint in a quasi-judicial setting that required CSU to investigate his complaint and arrive at a final decision.

In contrast to the absence of remedies in Payne, supra, 130 Cal.App.4th at page 743, EO 822 offered Ohton a remedy: CSU was obligated to comprehensively investigate his complaint and arrive at a final decision. In relying upon Payne to excuse his failure to seek review by mandate, Ohton confuses the procedures provided by EO 822 with the actual manner in which he claims the investigation was conducted and a final decision made.

Ohton "cannot circumvent administrative mandate review by seeking redress for alleged procedural and due process deficiencies in the dismissal process. That is precisely the purpose of mandamus review to ferret out such flaws and rectify them." (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 978.) Ohton's failure to exhaust his judicial remedies had the effect of establishing the propriety of CSU's action. (Accord, Knickerbocker v. City of Stockton, supra, 199 Cal.App.3d at

p. 243.)

III. Retaliation Claims

With respect to Ohton's claims of retaliation arising after CSU's final decision, we summarily dispose of Ohton's contention he was not required to exhaust his administrative remedies. In his civil complaint for damages, filed on February 13, 2004, he alleged CSU engaged in "continuing retaliation," and he adduced incidents that arose after CSU issued its final decision letter and restored his work schedule in the weight room. Specifically, he alleged that on February 11, 2004, he received an "inaccurate and unjustified performance evaluation." He also alleged that "recently [he] has learned that SDSU is seeking applicants in order to hire another strength and conditioning coach and [he] is informed and believes that SDSU intends to supplant [him] with the new hire on several major Division I athletic teams, including soccer, in an attempt to further limit [his] responsibilities and to further retaliate against him." Section 8547.12, subdivision (a) requires Ohton to file an administrative complaint "within 12 months of the most recent act of reprisal complained about."

It is axiomatic that, " '[W]here an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.' [Citation] The rule 'is not a matter of judicial discretion, but is a fundamental rule of procedure . . . binding on all courts.' " (Campbell v.Regents of University of California, supra,35 Cal.4th at p. 321.) Here, the trial court lacked jurisdiction to act on this and any other allegation that Ohton did not raise in a proper complaint of retaliation under the procedures established in section 8547.12, subdivision (c). Failure to exhaust administrative remedy is a jurisdictional defect that may be raised at any time by the parties or the court. (Hood v. Hacienda laPuente Unified School District (1998) 65 Cal.App.4th 435, 441.)

IV. Remand

This court has the inherent power to remand this matter back to the trial court to give Ohton an opportunity to seek leave to amend to add a petition for writ of mandate. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 238-239 (Branick).) We believe it is appropriate under the unusual circumstances of this case to remand. This is the first case arising under section 8547.12, subdivision (c). The term "satisfactorily addressed" has not been previously interpreted and its application has proved troublesome to both parties and the trial court.

Although CSU claims Ohton can only challenge its actions by writ of mandate, it prevailed below by convincing the court to read the words "satisfactorily addressed" out of the statute. Under this approach, the issue is resolved not by writ of mandate, but by consulting a calendar. Ohton's "objective good faith" standard hints at the standards applicable under mandate. Indeed, the final pages of Appellant's opening brief read like a memorandum of points and authorities in support of a petition for writ of mandate.

Whether Ohton may amend cannot be determined at this stage of the proceedings because Ohton had not yet filed a motion for leave to amend. On remand, should Ohton "in fact file a motion to amend, the superior court should decide the motion by applying the established rules governing leave to amend [citation] and the relation back of amended complaints." (Branick, supra, 39 Cal.4th at p. 239.) To avoid prejudicing the trial court's decisions, we will not attempt to render an advisory opinion on a motionOhton has not yet filed. (See Branick, at p. 243.)

DISPOSITION

The judgment is reversed and remanded. The trial court shall give Ohton an opportunity to seek leave to amend to add a petition for writ of mandate and decide all issues arising from the same.

CERTIFIED FOR PUBLICATION

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.

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^[1] One summary judgment motion was filed on behalf of Kaumeyer, Craft, and Powroznik. A separate joint motion was filed on behalf of all defendants.

^[2] We grant respondents' request for judicial notice of the legislative history of section 8547.12, subdivision (c), filed March 1, 2006.

^[3] Section 8547.10, subdivision (c) states in part, "Any action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the university officer. . . and the university has failed to reach a decision regarding that complaint within the time limits established for that purpose by the regents."

^[4] An amicus brief was filed on behalf of the California Faculty Association.

^[5] The California Supreme Court interpreted section 8547.10, subdivision (c) as follows: "[It] permits aggrieved university employees to file a damages action provided they have followed the administrative procedures and filed an administrative complaint before filing their lawsuit. [Citation.] Of note here, the employee may not proceed with a court action against the university unless that institution has failed to reach an administrative decision on the action within specified time limits. [Citation.] In such a case, the employee may file a lawsuit for damages even though the administrative complaint is pending. If, by contrast, the university has reached a decision on the administrative action, the statute does not authorize any statutory damages action." (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 327.)

Ohton and amicus argue that the Supreme Court's reference to section 8547.10, subdivision (c) was dicta. They also note the California Supreme Court granted review of an unpublished opinion (Miklosy v. University of California (Nov. 28, 2005, A107711) [nonpub. opn., 2005 Lexis 9808] review granted Jan. 4, 2006, S139133) to resolve whether section 8547.10, subdivision (c) merely requires that a complainant exhaust the internal remedy as a condition of bringing a civil action or if it bars an action for damages when the university timely renders any decision on the complaint.