Hayward v. Henderson

Decision Date04 January 1979
Citation151 Cal.Rptr. 505,88 Cal.App.3d 64
CourtCalifornia Court of Appeals
PartiesDane R. HAYWARD, Plaintiff and Appellant, v. Curtis L. HENDERSON, as Chief of Police, etc., et al., Defendants and Respondents. Civ. 3541.

Kimble, MacMichael, Jackson & Upton and Steven D. McGee, Fresno, for defendants and respondents.

OPINION

ACCURSO, * Associate Justice.

STATEMENT OF THE CASE

Appellant Dane R. Hayward, a police officer for the City of Hanford, was dismissed near the end of his one-year probationary period. He brought this action to challenge the procedures used in his dismissal.

On February 10, 1977, appellant's counsel filed three separate documents with the Superior Court of Kings County, all under one court number. One was fashioned a petition for writ of mandate, one a complaint for a preliminary injunction, and a third a complaint under the Federal Civil Rights Act.

Respondents, the City of Hanford and the police chief, demurred to the complaint for a preliminary injunction and the civil rights complaint. The court issued a memorandum of decision on the demurrers, sustaining the demurrers and giving appellant 20 days to amend the complaints. The record reflects no effort by appellant to amend his pleadings.

STATEMENT OF THE FACTS

Appellant was hired by the City of Hanford as a police officer trainee on December 26, 1975; funding for the position was provided by the federal government under the Comprehensive Employment Training Act (CETA). Appellant successfully completed the training required.

On December 16, 1976, appellant was informed that his employment would be terminated effective December 24, 1976; no further explanation was provided.

The City of Hanford's merit system rules and regulations provide in section 904 that:

"During the probationary period an employee may be suspended, demoted or terminated at any time by the Department Head without cause and without the right of appeal or to submit a grievance."

The position of police officer has a one-year probationary period.

Following the dismissal, appellant's counsel exchanged a series of letters with city officials. Appellant's counsel also sent a letter to the executive director of the Tulare and Kings County Comprehensive Manpower Agency, the grantee of federal funds. The City of Hanford is a subagent or sponsor of the CETA program under this agency.

Receiving no satisfaction from the above actions, appellant filed the instant suit with the documents described in the statement of the case, Ante.

DISCUSSION

Appellant contends the trial court erred in sustaining the demurrer to the complaint for injunctive relief on the ground that appellant failed to exhaust his administrative remedies.

When an order has been entered sustaining a demurrer and granting leave to amend, the pleader has two options: he may test the sufficiency of his original pleading on the judgment sustaining the demurrer, or he may accept the judgment that the complaint was insufficient and file an amendment. (Sheehy v. Roman Catholic Archbishop (1942) 49 Cal.App.2d 537, 541, 122 P.2d 60.) Therefore, the duty of this court on appeal is to test the sufficiency of the original pleadings.

Appellant's complaint for the preliminary injunction was based on rights he claimed from the federal rules and regulations governing the CETA funding for his position. The trial court sustained respondents' demurrer to this complaint because appellant had not sufficiently alleged he had exhausted the applicable administrative remedies.

29 Code of Federal Regulations, section 98.26, requires the establishment of a procedure for resolving disputes arising out of the administration of the CETA program. Those procedures require a written notice, an opportunity for an informal hearing, and informal review. Subparagraph (d) provides in pertinent part: "No individual . . . subject to the issue resolution requirements of this section may initiate the hearing procedures of subpart C of this Part until all remedies under this section have been exhausted."

The pertinent portions of subpart C are as follows:

" § 98.40. Purpose and policy.

"(a) The regulations set forth in this Subpart C contain the procedures . . . for the review of comprehensive manpower plans . . . and for the receipt, investigation, hearing and determination of questions of noncompliance with the requirements of the Act and the regulations promulgated under the authority of the Act . . . .

"(b) It is the policy of the Secretary to receive information concerning alleged violations of any title of the Act and the regulations promulgated pursuant thereto from any person, . . . Assistance in the filing of a formal allegation may be secured from the appropriate Regional Solicitor, by any person who desires and needs such assistance.

"(c) A participant (appellant) in a program under the Act must exhaust the administrative remedies established by (§ 98.26) . . . for resolving matters in dispute prior to utilizing the procedures under this Subpart C. . . . A participant may initiate an action under this subpart within 30 days of any final decision by a grantee (City of Hanford).

" § 98.41. Review of plans and applications; violations.

". . .1.

"(b) When information available to the Secretary indicates that a grantee may be:

". . .en

"(4) otherwise materially failing to carry out the purposes and provisions of the Act or regulations issued pursuant to the Act; he shall, before taking final action on such grounds, notify the grantee of his proposed action and provide the grantee a reasonable time within which to respond. . . .

"(c) Every other person claiming legal injury because of any action under the Act may be heard only by initiating a complaint under § 98.42.

". . .ery

" § 98.47. Hearings.

"(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by the Act, . . . and the issue has not been resolved informally, the Secretary or RA (Regional Administrator) shall give reasonable notice . . . to the affected respondent and complainant, if any. . . ."

In contrast to the above administrative procedures available to the appellant, appellant merely exchanged a series of letters with Hanford officials, consulted with the director of Tulare and Kings County Federal Manpower Agency, and followed that meeting up with a letter. Nowhere in his pleadings does appellant allege or provide facts to indicate that he has sought the administrative relief available through 29 Code of Federal Regulations, section 98.40 et seq. Appellant suggests that the failure of the City of Hanford to provide a grievance procedure should excuse an effort to exhaust the administrative remedies. Such contention is without merit. Subpart C clearly establishes administrative procedures which appellant could have utilized to enforce the implementations of the requirements of section 98.26.

When an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act; this is "not a matter of judicial discretion, but is a fundamental rule of procedure . . . ." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292-293...

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7 cases
  • Green v. City of Oceanside
    • United States
    • California Court of Appeals
    • August 19, 1987
    ...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 co......
  • White v. State of California
    • United States
    • California Court of Appeals
    • October 8, 1987
    ...416 [dispute over insurance contract subject to administrative remedy before Department of Insurance]; Hayward v. Henderson (1979) 88 Cal.App.3d 64, 69-70, 151 Cal.Rptr. 505 [employee claiming rights under rules of federal CETA Program required to exhaust available administrative remedies u......
  • Acme Fill Corp v. San Francisco Bay Conservation etc. Com.
    • United States
    • California Court of Appeals
    • December 11, 1986
    ...has specifically been held applicable to anyone seeking to enforce a right granted under a federal statute. (Hayward v. Henderson (1979) 88 Cal.App.3d 64, 70, 151 Cal.Rptr. 505.) Administrative proceedings must not only be initiated, but must be pursued to their appropriate conclusion befor......
  • Adams v. City of Chicago, 79 C 4742.
    • United States
    • U.S. District Court — Northern District of Illinois
    • June 16, 1980
    ...may properly be referred to the Department of Labor. See Gooley v. Conway, 590 F.2d 744 (8th Cir. 1979); Hayward v. Henderson, 88 Cal.App.3d 64, 151 Cal.Rptr. 505 (5th Dist. 1979). All other allegations in the complaint of violations of CETA must be resolved in the same way. 29 C.F.R. § In ......
  • Request a trial to view additional results

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