California Pers v. Superior Court

• Citation: 160 Cal.App.4th 174,72 Cal.Rptr.3d 561
• Decision Date: 15 February 2008
• Docket Number: No. C054168.,C054168.
• Parties: CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM et al., Petitioners, v. The SUPERIOR COURT of Sacramento County, Respondent; Gary Trobee, Real Party in Interest.
• Court: California Court of Appeals

72 Cal.Rptr.3d 561

160 Cal.App.4th 174

CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM et al., Petitioners, v. The SUPERIOR COURT of Sacramento County, Respondent; Gary Trobee, Real Party in Interest.

No. C054168.

Court of Appeal, Third District.

February 15, 2008.

K. William Curtis, Warren C. Stracener, Sacramento, Sandra L. Lusich, and Tom Dyer, for Petitioners.

No appearance for Respondent.

No appearance for Real Party in Interest.

RAYE, J.

After the California Public Employees' Retirement System (PERS)¹ rendered its adverse findings, senior information systems analyst supervisor Gary Trobee (plaintiff) continued to prosecute his whistleblower claim Code, § 1102.5) without challenging those findings by mandamus. He contends he has the right to pursue a civil action for damages once the State Personnel Board (SPB) issues or fails to issue findings and his government claim is rejected. The trial court overruled PERS's demurrer to the first cause of action for retaliation under the California Whistleblower Protection Act (the Whistleblower Act; Gov. Code, § 8547 et seq.) and sustained without leave to amend PERS's demurrer to the other two causes of action. Plaintiff does not challenge the trial court's rulings as to the second and third causes of action. We grant PERS's petition for a peremptory writ of mandate directing respondent superior court to set aside and vacate its order overruling PERS's demurrer to the first cause of action.

We conclude that: (1) because plaintiff was provided the opportunity to submit evidence, name witnesses, and argue his claim, he was provided with the type of quasi-judicial hearing sufficient to satisfy Code of Civil Procedure section 1094.5 even though the SPB was not required to provide an evidentiary hearing; and (2) because the Legislature did not clearly provide that a whistleblower could pursue alternative remedies and did require plaintiff to initiate administrative proceedings, he is collaterally estopped from relitigating the findings that were actually litigated in the quasi-adjudicatory proceedings.

PLEADINGS

We assume, as we must, the truth of the factual allegations in the underlying complaint. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320, 25 Cal.Rptr.3d 320, 106 P.3d 976 (Campbell).) Plaintiff resigned from state service effective August 13, 2004, purportedly as a result of his supervisor's retaliatory conduct. On August 31, 2004, he filed a whistleblower complaint with the SPB. On December 8, 2004, SPB's executive officer recommended the dismissal of plaintiffs complaint in its entirety. Plaintiff received the executive officer's notice of findings, including the admonition that he had the right to file a petition for a full evidentiary hearing within 30 days. His request for a hearing was denied by the SPB, at which time the findings became final.

Rather than filing a petition for a writ of mandate to challenge the SPB decision, plaintiff filed a civil complaint alleging retaliation in violation of section 8547.8 of the Government Code and section 1102.5 of the Labor Code. Respondent superior court rejected the notion that plaintiffs failure to exhaust his judicial remedies barred a civil action and concluded that section 8547.8 "expressly allows an action at law to be brought once findings are made, or not made. No other conditions are attached to the right to bring the action." Thus, the court overruled PERS's demurrer to the whistleblower cause of action under the Whistleblower Act.

DISCUSSION

I

The Whistleblower Act embodies a strong public policy to deter and punish those who retaliate against public employees for reporting wrongdoing. "The Legislature finds and declares that state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution. The Legislature further finds and declares that public servants best serve the citizenry when they can be candid and honest without reservation in conducting the people's business." (Gov Code, § 8547.1.)² Thus, state employees who retaliate against whistleblowers are subject to fines, imprisonment, disciplinary proceedings, and civil liability, including compensatory damages, punitive damages, and attorney fees. (§ 8547.8, subds. (b), (c).)

To accomplish its stated objectives, the Whistleblower Act provides remedies for the injured whistleblower as well. If the SPB concludes that improper activity has occurred, it "may order any appropriate relief, including, but not limited to, reinstatement, backpay, restoration of lost service credit, if appropriate, compensatory damages, and the expungement of any adverse records of the state employee or applicant ... who was the subject of the alleged acts of misconduct prohibited by Section 8547.3." (§ 19683, subd. (c).) Moreover, the SPB must make reports to the Governor and the Legislature. (§ 19683, subd. (f).)

The Whistleblower Act also allows a whistleblower to bring a civil suit for damages. Section 8547.8, subdivision (c) states, in pertinent part: "In addition to all other penalties provided by law, any person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against a state employee or applicant for state employment for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party."

The Legislature has conditioned the right to bring a civil action, however. Section 8547.8, subdivision (c) also provides: "[A]ny action for damages shall not be available to the injured party unless the injured party has first filed a complaint with the State Personnel Board pursuant to subdivision (a) [of this section], and the board has issued, or failed to issue, findings pursuant to Section 19683." Section 19683, subdivision (a) directs the "State Personnel Board [to] initiate a hearing or investigation of a written complaint of reprisal or retaliation as prohibited by Section 8547.3 within 10 working days of its submission. The executive officer shall complete findings of the hearing or investigation within 60 working days thereafter, and shall provide a copy of the findings to the complaining state employee or applicant for state employment and to the appropriate supervisor, manager, employee, or appointing authority."

The trial court found that the plain language of the Whistleblower Act requires nothing more of a plaintiff than to file a complaint with the SPB and await its findings or its failure to issue findings within the statutory time frame set forth in section 19683. We recognize, of course, that we must not ignore the plain meaning of the statute by either adding words that are not there or ignoring language that is. (Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 28-29, 285 Cal.Rptr. 515.)

The respondent court's ruling misses the mark in that it attributes far too great a significance to the Legislature's silence and is reminiscent of arguments lodged by a university whistleblower and rejected by the Supreme Court in Campbell, supra, 35 Cal.4th at pp. 324-329, 25 Cal.Rptr.3d 320, 106 P.3d 976. In Campbell, as here, the whistleblower argued that the pertinent statutes do not require the exhaustion of administrative remedies, and therefore, the Legislature must have intended to abrogate the exhaustion requirement. (Id. at p. 324, 25 Cal.Rptr.3d 320, 106 P.3d 976.) The whistleblower pointed out that the Legislature certainly knew how to incorporate an exhaustion requirement as it did in section 8747.10. Thus, legislative silence on the issue must be deliberate. (Campbell, supra, 35 Cal.4th at p. 327, 25 Cal.Rptr .3d 320,106 P.3d 976.)

But according to the Supreme Court, "the express mention in one statute of a fundamental precondition of filing suit against an administrative agency does not abrogate that requirement in every statute that is silent on the matter." (Campbell, supra, 35 Cal.4th at p. 327, 25 Cal.Rptr.3d 320, 106 P.3d 976.) Or, in other words, "`courts should not presume the Legislature in the 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.'" (Id. at p. 329, 25 Cal.Rptr.3d 320, 106 P.3d 976.)

II

Would-be plaintiffs ignore adverse administrative findings at their peril. An ever-burgeoning number of appellate cases reject civil actions predicated on conduct previously litigated in administrative proceedings. The issue presented in Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410 was "whether an individual who has been expelled or excluded from membership in an association after being afforded a quasi-judicial proceeding may bring an immediate tort action for damages or must first succeed in setting aside the association's decision in a separate mandamus action." (Id. at pp. 482-483, 131 Cal.Rptr. 90, 551 P.2d 410.) A doctor at one of the petitioning hospitals requested a hearing after revocation of her staff privileges. She was provided a hearing, the judicial review committee upheld the revocation, and the hospital board of directors affirmed the committee's decision. (Id. at pp. 471-472, 131 Cal.Rptr. 90, 551 P.2d 410.) She then brought a civil action against the hospital. (Id. at p. 469, 131 Cal.Rptr. 90, 551 P.2d 410.) The Supreme Court, affirming the dismissal of the doctor's tort claim, held: "[W]e believe that so long as such a quasi-judicial decision is not set aside through appropriate review procedures the decision has the effect of establishing the propriety of the hospital's action. [Citation.] Accordingly, we conclude that plaintiff must first succeed in overturning the quasi-judicial action before pursuing her tort claim against defendants." (Id. at p. 484, 131 Cal.Rptr. 90, 551 P.2d 410.)

The concept of...