Humbert v. Castro Val. County Fire Protection Dist.

• Decision Date: 14 March 1963
• Citation: 214 Cal.App.2d 1,29 Cal.Rptr. 158
• Court: California Court of Appeals Court of Appeals
• Parties: John L. HUMBERT, Plaintiff and Appellant, v. CASTRO VALLEY COUNTY FIRE PROTECTION DISTRICT, a public corporation, Defendant and Respondent. Civ. 20853.

Page 158

29 Cal.Rptr. 158

214 Cal.App.2d 1

John L. HUMBERT, Plaintiff and Appellant, v. CASTRO VALLEY COUNTY FIRE PROTECTION DISTRICT, a public corporation, Defendant and Respondent.

Civ. 20853.

District Court of Appeal, First District, Division 1, California.

March 14, 1963.

Rehearing Denied April 4, 1963.

Kiriakis & Knowles, W. James Knowles, Hayward, for appellant.

J. F. Coakley, dist. Atty. of County of Alameda, Richard H. Klippert, Deputy Dist. Atty., Oakland, for respondent.

BRAY, Presiding Justice.

Plaintiff appeals from a judgment in favor of defendant.

QUESTIONS PRESENTED.

1. Did plaintiff fail to exhaust his administrative remedies?

2. Did defendant waive the requirement of appeal?

3. Did the complaint state a cause of action for breach of contract?

RECORD.

The evidence is not in conflict as to the facts. The action is for damages for breach of an alleged oral employment contract. A general demurrer to the complaint was overrued. A trial was had. Judgment in favor of defendant was rendered on the court's determination that plaintiff had failed to exhaust his administrative remedies.

June 1, 1952, plaintiff was appointed as a fireman of the district by the district's board of fire commissioners. July 1, 1954, he was appointed to the rank of captain.

June 12, 1959, plaintiff and two firemen were suspended by the chief indefinitely without pay, pending a meeting of the board. The action was taken on the alleged grounds of insubordination and general unsatisfactory conduct. Article I, section 3, of the rules and regulations of the district governing the operation of the fire department, gives the fire chief the power to suspend any employee of the department for violation of the rules. Article XI, section 34, provides that dismissal from the fire department, subject to approval of the fire commissioners, may be a penalty for violation.

Plaintiff was informed by letter of his suspension and that his dismissal would be recommended at the meeting of the board. Upon receipt of the letter plaintiff called upon the chairman of the board and asked him to call a meeting of the board 'to get it squared away before we had any publicity on it.' The chairman made no promise. Then plaintiff and one of the suspended firemen retained Attorney Phillips to represent them. Plaintiff called upon two other commissioners, but apparently nothing transpired. Attorney Phillips arranged an 'informal' meeting with Commissioner Rhodes and Chairman Peters for June 15. At the meeting, the two commissioners, the fire chief and two other attorneys were present. Plaintiff was not present. Nothing was resolved except that the commissioners offered to give the men a public hearing on June 17, if the men desired it. The two commissioners felt that plaintiff should be discharged. Attorney Phillips then advised plaintiff that it would be better if plaintiff accepted the discharge and did not avail himself of a hearing, as a hearing 'would do nothing but damage him.' The attorney then withdrew from the case.

Plaintiff, without counsel, attended the June 17 meeting. It began as a public meeting but was adjourned into an executive or private session. Plaintiff was called into the executive session, and handed a list of the charges against him. He disclaimed all guilt. He was asked to resign. He refused, stating, however, that if the charges were withdrawn he would go back to work for a week and then would resign or they then could discharge him and he would not contest the discharge. Later the commissioners came out of the executive session and read a resolution discharging him and the other two men. At a public meeting of the commissioners in July and agains at one in August, plaintiff 'spoke out,' asking the board to reconsider their action. The court found that at the August meeting testimony taken at this meeting, but that he and was taken and the commissioners voted unanimously to sustain their former action. ¹

1. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES.

Section 1 of article XII provides: 'Any member suspended or removed from the service shall have the privilege of appeal and hearing, following disciplinary action.' (Emphasis added.) Section 2 provides: 'Such appeals are to be in writing to the Fire Chief, not more than ten days after the disciplinary action has been received. Upon receiving an appeal, the Chief shall forward it to the Fire Commissioners within twenty-four hours.'

Admittedly plaintiff filed no such appeal. He takes the position that having asked for and received the informal meeting of June 17 he complied with the administrative process. He thought that he had received all that the district would have afforded him in any event had he requested a hearing in writing under article XII. He admitted that he knew of the rule as to appeals. He now claims that the meeting of June 17 was not a hearing 'harmonious with the requirements of due process of law.' Contradictorily, he contends that the district may not now deny that it was a hearing conducted at his request, thereby excusing him from filing an appeal, because in answering an allegation in plaintiff's complaint '[t]hat the proceeding at which the alleged grounds were adduced was conducted without notice to plaintiff of the charges made, and without apportunity for plaintiff to be heard or to prepare any defense * * *' the district in its answer alleged that on June 16 defendant set a hearing at the request of plaintiff and others, who had requested that a hearing on said charges be held immediately; that the hearing was held on June 17, 1959, at the regular meeting place of the commission, at which time plaintiff was present pursuant to notice prior given, and at which time testimony was taken by defendant concerning the charges against plaintiff and others; and that subsequent to the receipt of the testimony as above set forth at said hearing, defendant commission acted by resolution, terminating the services of plaintiff and others. ²

Obviously, the hearing of June 17 is not the type of hearing contemplated to be held under section 1, article XII, on appeal 'following disciplinary action.' Until the commission acts there is nothing from which to appeal. The fire chief notified plaintiff that he was suspended, pending the meeting of the board, and that at that meeting the chief would recommend dismissal. The suspension was, therefore, temporary until the board acted upon it, plaintiff appearing at the hearing at which the board determined that plaintiff should be dismissed. The order of dismissal was the 'disciplinary action' contemplated by article XII as the one from which an appeal could be taken. Neither the fact of the June 17 meeting, nor anything that occurred there, excused plaintiff from taking an appeal from the act of the commission in dismissing him. His failure to do so constituted a failure to exhaust his administrative remedies.

A litigant must exhaust his administrative remedies before resorting to the courts. Such exhaustion of remedies is a condition of jurisdiction. (United States v. Superior Court (1941), 19 Cal.2d 189, 120 P.2d 23; Dunham v. City of Westminster (1962), 202 Cal.App.2d 245, 249, 20 Cal.Rptr. 772.)

Plaintiff, citing Hesperia Land Development Co. v. Superior Court (1960), 184 Cal.App.2d 865, 876, 7 Cal.Rptr. 815, 822, where there appears the following language, 'Exhaustion of the administrative remedy is a jurisdictional prerequisite to resort to the courts. One exception to this general rule is where irreparable injury will result if an administrative hearing is permitted to proceed and its orders made effective without prior judicial interference,' contends that the instant case is one for the application of that exception. However, the exception, as is shown in Abelleira v. District Court of Appeal (1941), 17 Cal.2d 280, 296, 109 P.2d 942, 951, 132 A.L.R. 715, applies only to cases 'dealing with rate orders of regulatory commissions, where the administrative body imposes a confiscatory rate on a public utility.' In such cases the right to equitable relief is for the purpose of protecting 'the property rights of a petitioner from irreparable injury immediately threatened by a void administrative act.' (Pp. 296-297, 109 P.2d page 951.) As said concerning the situation in that case, the rule 'has no relevancy here.' (Page 297, 109 P.2d page 951.) Plaintiff's failure to appeal places him in no different position than if, for example, he had let the statute of limitations run on any claim that he might have had.

In Alexander v. State Personnel Bd. (1943), 22 Cal.2d 198, 137 P.2d 433, the petitioners sought by writ of mandate to compel the State Personnel Board and the State Land Commission to restore them to certain positions from which they claimed they were wrongfully discharged. In holding that they were not entitled to relief because they had failed to apply for a rehearing within the time prescribed by the state Civil Service Act, the court said (pp. 199-200, 137 P.2d p. 434): 'The rule that administrative remedies must be exhausted before redress may be had in the courts is established in this state. Abelleira v. District Court of Appeal, 17 Cal.2d 280, at pages 292, 293, 302, 109 P.2d 942, 132 A.L.R. 715, and cases cited. The provision for a rehearing is unquestionably such a remedy. As to the general rule, it is stated in Vandalia Railroad Co. v. Public Service Commission of Indiana, 242 U.S. 255, at page 261, 37 S.Ct. 93, 61 L.Ed. 276, that one aggrieved by the rulings of an administrative board may not complain that he has been deprived of constitutional rights if he has not availed himself of the remedies prescribed for a rectification of such rulings.'

In Reardon v. City of Daly City (1945), 71 Cal.App.2d 759, 163 P.2d 462, the city council removed the chief of police for misconduct. He failed to follow the rules prescribed by ordinance for obtaining a review of the council's action. He...