Cespedes v. City of Montclair

Decision Date27 September 2021
Docket NumberE073464
CourtCalifornia Court of Appeals Court of Appeals
PartiesRONNY CESPEDES, Plaintiff and Appellant, v. CITY OF MONTCLAIR, Defendant and Respondent.

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No CIVDS1715014 David Cohn, Judge.

Castillo Harper and Michael A. Morguess for Plaintiff and Appellant.

Samuel J. Wells and Samuel J. Wells for Defendant and Respondent.

OPINION

FIELDS J.

I. INTRODUCTION

Plaintiff and appellant Ronny Cespedes appeals from a judgment denying his petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) seeking judicial review of the decision to terminate his employment as a full-time police officer with the City of Montclair (city). The trial court denied his petition for failure to exhaust all available administrative remedies prior to seeking judicial review.

On appeal, Cespedes does not contest that the administrative process provided for appeal of his termination to the Montclair City Council, and he does not contest the fact that he failed to avail himself of this remedy. Instead, Cespedes argues that his failure to exhaust his administrative remedy was excused because (1) appealing his termination to the city council would have been a futile act; (2) the city council had a financial interest in the outcome of his administrative proceeding, such that it could not sufficiently act as an impartial tribunal to afford him due process; and (3) the procedures for any appeal to the city council were too uncertain or inadequate.

We conclude that Cespedes's claims for excuse, other than futility, have been forfeited for failure to raise those issues in the trial court proceedings. With respect to Cespedes's claim of futility, we find the trial court's findings are supported by substantial evidence in the record, and we affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY
A. Procedural History

In 2014, Cespedes was employed as a full-time police officer with the city's police department.

On March 10, 2014, Cespedes received a written notice of intent to discipline from his supervisor. The notice indicated that Cespedes had been investigated for 14 charges of misconduct, 12 charges had been sustained following the investigation, and his supervisor was recommending Cespedes be terminated from his employment as a result. The notice further informed Cespedes that he had the right to present a predisciplinary response to the chief of police pursuant to a memorandum of understanding (MOU) between the city and the Montclair Police Officer's Association.

Following Cespedes's predisciplinary response, the chief of police dismissed one of the 12 charges but otherwise determined that the termination of Cespedes's employment was an appropriate disciplinary action in light of the remaining charges.

On June 9, 2014, Cespedes submitted a written notice of appeal to the city manager pursuant to the terms of the MOU.

In July 2014, while his administrative appeal to the city manager was still pending, Cespedes filed a government claim with the city pursuant to Government Code section 910. Cespedes asserted a claim for damages on the basis that the city's disciplinary action against him constituted impermissible retaliation and wrongful termination. The city took no action on the claim and, as a result, it was rejected by operation of law.

On July 24, 2014, a hearing on Cespedes's administrative appeal to the city manager was held, and the city manager issued a written decision upholding Cespedes's termination on September 29, 2014.

On October 1, 2014, Cespedes provided written notice of a further appeal of the disciplinary action, requesting the matter be submitted to advisory arbitration pursuant to the terms of the MOU.

In March 2015, while his appeal to advisory arbitration was still pending, Cespedes filed a civil suit for wrongful termination against the city.

Evidentiary hearings in the parallel advisory arbitration were conducted between August 2015 and October 2016. During these proceedings, the city withdrew one of the charges against Cespedes. Additionally, while the arbitration proceedings were still ongoing, the city filed its answer to Cespedes's civil complaint, generally denying the allegations of the complaint and asserting 41 purported affirmative defenses. One of those purported affirmative defenses alleged: “At all times relevant to this litigation, [Cespedes] was, in fact, guilty of the offenses and any lesser included or related offenses for which he was investigated.”

In February 2017, following the presentation of evidence in arbitration, the city agreed to voluntarily dismiss two additional charges, leaving only eight charges for the arbitrator to resolve. On May 10, 2017, the arbitrator issued a written decision in the form of an advisory opinion and recommended award. The arbitrator recommended that, of the remaining charges against Cespedes, five charges be sustained in their entirety, two charges be sustained in part, and one charge not be sustained. The arbitrator also recommended that Cespedes's termination be upheld based upon the sustained charges.

Cespedes did not respond to the arbitrator's decision; and, on July 10, 2017, the city sent correspondence to Cespedes indicating that, under the terms of the MOU, Cespedes had the right to appeal the arbitrator's decision to the city council, but Cespedes had failed to do so within the time provided for such appeal. The city took the position that the failure to appeal to the city council constituted an abandonment of the administrative process, barring judicial review for failure to exhaust his administrative remedies.

B. Petition for Writ of Administrative Mandamus

On August 4, 2017, Cespedes filed a petition for writ of administrative mandamus in the trial court pursuant to Code of Civil Procedure section 1094.5, seeking judicial review of the arbitrator's decision. Following demurrer, Cespedes filed a second amended petition in which he alleged he should be excused from exhausting the available administrative remedy of appealing to the city council because such action would be futile based upon the city's denial of his prior government claim and its answer in response to his civil complaint.

In its answer to the petition, the city asserted seven purported defenses. Among other things, the city argued that Cespedes's failure to exhaust his administrative remedies precluded judicial review as a jurisdictional matter; Cespedes's failure to appeal the arbitrator's decision to the city council constituted a withdrawal of his claim under the terms of the MOU and, as a result, there was no final decision subject to review; and Cespedes failed to provide any evidence or facts to support his claim that appeal to the city council would have been futile.

The trial court bifurcated the trial on the issue of Cespedes's alleged failure to exhaust his administrative remedies, setting that matter to be heard and decided first. At the time of the hearing, the trial court orally provided a tentative ruling that the petition should be denied for Cespedes's failure to exhaust his administrative remedies. Cespedes did not contest the fact that he failed to appeal to the city council, but he again argued that doing so would be futile.

In support of his argument, Cespedes relied on the fact that the termination of his employment had been upheld during multiple levels of administrative review; as well as the fact that in the parallel civil litigation, the city's answer, in one of the city's purported affirmative defenses, alleged that he was guilty of the offenses for which he was investigated. In response, the city pointed out that its answer was filed prior to any evidentiary hearings were conducted in arbitration and argued that it initially asserted all available defenses simply to protect its rights pending discovery.

After taking the matter under submission, the trial court issued a written ruling denying the petition for writ of administrative mandamus on the basis that Cespedes failed to exhaust his administrative remedies and failed to show futility as a basis for excuse. Judgment was entered on June 27, 2019, and Cespedes appeals.

III. DISCUSSION

On appeal, Cespedes does not contest the fact that an appeal to the city council was an administrative remedy available to him, and he failed to exhaust that remedy prior to filing his petition for writ of administrative mandamus. Instead, Cespedes contends the trial court erred when it concluded that he failed to establish an adequate excuse for his failure to exhaust his administrative remedies. Specifically, Cespedes argues that his failure should have been excused because (1) an appeal to the city council would have been futile; (2) the city council was financially biased, such that it could not have acted as an impartial tribunal sufficiently enough to protect his due process rights; and (3) the procedures for the city council review were uncertain and inadequate. We consider only the merits of Cespedes's first argument and deem the remaining arguments forfeited for failure to raise them in the trial court.

A. General Legal Principles and Standard of Review

“A writ of mandate under [Code of Civil Procedure] section 1094.5 may be issued to review an administrative decision only if that decision is final. [Citation.] This requirement is regarded as an aspect of the exhaustion requirement. [Citation.] ‘Under the doctrine of the exhaustion of administrative remedies, a party must go through the entire proceeding to a final decision on the merits of the entire controversy” before resorting to the courts for relief.' (Bollengier v Doctors Medical Center (1990) 222 Cal.App.3d...

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