Green v. City of Oceanside

CourtCalifornia Court of Appeals
Citation239 Cal.Rptr. 470,194 Cal.App.3d 212
Parties, 121 Lab.Cas. P 56,873 William GREEN, Plaintiff and Respondent, v. CITY OF OCEANSIDE, Defendant and Appellant. Civ. D004820.
Decision Date19 August 1987

Daley & Heft, Dennis W. Daley and Dan Groszkruger, Solana Beach, for defendant and appellant.

Edward J. Cooper, City Atty., Santa Ana, as amicus curiae, on behalf of defendant and appellant.

Larabee & Loadman and Dale R. Larabee, San Diego, for plaintiff and respondent.

WIENER, Acting Presiding Justice.

The City of Oceanside (City) appeals a $125,000 judgment entered on the jury verdict in favor of plaintiff William Green on his amended complaint seeking damages for wrongful termination and for violating the covenant of good faith and fair dealing. The City asserts the court lacked jurisdiction because Green failed to exhaust his administrative remedies, Green's award of damages for emotional distress was improper because such damages were subject to the exclusive remedy rule of worker's compensation, the jury was improperly instructed that they could substitute their own judgment for that of the employer on what is or is not good faith and fair dealing and what constitutes good cause for termination and the trial court erred in not granting the City's nonsuit motion because Green did not present evidence sufficient to make out a prima facie case of wrongful termination. We reject these arguments and affirm the judgment.


We preface the following factual summary with the comment that we have varied the form of this opinion to highlight the procedural uniqueness of this case. Rather than stating the facts which immediately follow in the light most favorable to the judgment we state them in a neutral manner drawn from the entire record in order to fully appreciate City's view of this case. As so stated this is clearly--at least as seen prospectively--not a particularly strong plaintiff's case even before the typical jury which we believe will generally be more sympathetic to an employee than an employer in a wrongful termination/bad faith case. The apparent weakness of plaintiff's case may explain why the City decided to forego technical defenses in order to submit the matter on the merits to twelve persons representing the collective conscience of the community. From a political perspective this was probably a thoughtful and socially healthy decision. From a legal perspective, however, it eviscerated City's principal arguments in this appeal. Interestingly, with City's keener retrospective appreciation of the facts when examined in the light most favorable to the judgment, City does not argue that the judgment is factually unsupported. City limits its sufficiency of the evidence argument which we reject (see para. III, pp. 13-17, post ) to its contention that the court erred in denying its nonsuit motion made at the conclusion of plaintiff's case.


Green worked as a janitor for the City from 1970 to 1981, when the City's contract with a private company for building maintenance resulted in the elimination of his job. In July 1981 Green, a permanent employee, exercised his seniority rights and transferred into City's Streets Department. In so doing Green "bumped" another employee.

Green began doing weeding, shoveling and cement work. He was soon made a dump truck driver. He was not asked if he had any experience driving a dump truck and he was not instructed on how to operate one. Between August 31, 1981, and September 2, 1983, Green was involved in six dump truck related accidents:

On August 31, 1981, he did not set the parking brake on an asphalt-loaded truck with the result it rolled unattended into another City vehicle.

On December 17, 1982, the open door of his dump truck was struck and damaged by a nearby truck.

On February 24, 1983, the load on his truck was not secured and the tailgate was not raised with resultant loss of a $550 weedeater.

On May 9, 1983, he grabbed the wrong lever while unloading asphalt so that the truck bed fell and injured another employee.

On August 15, 1983, he drove the truck over an unoccupied mechanic's creeper in the truck yard.

On September 2, 1983, his truck struck a gas main warning pole.

City's Accident Review Board found most of these incidents were "preventable." City gave Green 30 minutes of training after the August 1981 parking brake incident and very little additional training. After the December 1982 incident Green was grounded for a short time and given a written reprimand. On his appeal the City Manager ordered the written reprimand removed from Green's personnel file reduced to an oral reprimand. The written reprimand was never removed from Green's public service file.

Green also filed formal protests of the City's disciplining for the February 1983 and August 1983 incidents through the Oceanside City Employees' Association (Association) pursuant to a written agreement between the City and the Association. The five steps of the grievance procedure involve the right to appeal to the immediate supervisor, then to the department head, then to the City Manager, then to advisory arbitration followed by discretionary review by the City Council. Green's protests of the February 1983 and August 1983 incidents concluded at the department head level and the City Manager level respectively.

Green did not report the September 2, 1983, incident of his truck striking a gas main warning pole. When his supervisor asked him the following work day, Monday, September 5, if he hit the pole, Green denied doing so. Green's supervisor turned the matter over to the City Police Department for investigation. Green admitted to the police that he had hit the pole. By letter dated September 8 Green was terminated for cause. At that time Green was on technical medical leave seeking psychological counseling. The termination letter stated in part:

"It is my intention to effectuate your termination at 4:30 P.M., Friday, September 23, 1983. You may appeal this proposed disciplinary action to the Department Head, Glenn E. Prentice, either orally or in writing. Any such response must be made to Mr. Prentice on or before 4:30 P.M., Thursday, September 15, 1983." (Emphasis added.)

Green took no action to challenge his termination through the employees' grievance procedure.


The City's answer to Green's amended complaint admitted it hired Green to fill a permanent position in 1970 and that Green "was thereafter subject to termination for just cause." City also admitted the covenant of good faith and fair dealing applied to the employment relationship between itself and Green. City's ninth affirmative defense was that Green's action was barred for failure to exhaust the administrative remedies available to him before filing suit. At trial, City did not urge this affirmative defense preferring to address the merits of the case in its motions for nonsuit, judgment notwithstanding the verdict and new trial.

During argument of City's motion for nonsuit made after Green's opening statement, the trial court asked certain questions concerning administrative remedies, including "does he even have a right to be here at all, if, in fact, he did not first take advantage of his administrative remedies?" City said it would brief this issue. It failed to do so. On the record there is no indication the City addressed the subject further during trial even though it was mentioned once again in connection with an evidentiary ruling leading to a stipulation that Green filed a written claim with the City which was rejected.


City argues that Green's failure to exhaust his administrative remedies deprived the trial court of jurisdiction and therefore the judgment is void for lack of subject matter jurisdiction. The administrative remedy to which City refers is set forth in the provisions of the agreement between the City and Association requiring the five-step grievance procedure noted above. Green was properly notified of his right to appeal the discharge in the four page letter As a general rule where "an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act; ..." (Hayward v. Henderson (1979) 88 Cal.App.3d 64, 70, 151 Cal.Rptr. 505.) When the issue is properly pursued, jurisdiction of the court to entertain an action for judicial relief is conditional upon a completion of the administrative procedure. (United States v. Superior Court (1941) 19 Cal.2d 189, 194, 120 P.2d 26.) The rule applies as well when the administrative procedure is provided by regulation, resolution or ordinance. (See Hayward v. Henderson, supra, 88 Cal.App.3d 64, 68-70, 151 Cal.Rptr. 505; see also Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 415, 417-418, 194 Cal.Rptr. 357, 668 P.2d 664; Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 570, 574, 206 Cal.Rptr. 738.) The rationale for the rule has been explained as follows:

of September 8, 1983, giving him notice of suspension and discharge. 1 It is clear that Green did not challenge his discharge except by this lawsuit. It is equally clear the City failed to pursue the argument even when invited to do so by the trial court. The issue we must confront, then, is whether the City can waive the defense of a failure to exhaust administrative remedies.

"The administrative claim or 'cause of action' is within the special jurisdiction of the administrative agency, and the courts may act only to review the final administrative determination. Allowing a suit prior to such a final determination would constitute interference with the subject matter jurisdiction of another tribunal. Accordingly, the exhaustion of an administrative remedy is a jurisdictional element in California. (Hayward v. Henderson, supra, 88 Cal.App.3d 64, 70 ; see also 3...

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