Johnson v. City of Loma Linda

Decision Date15 September 1998
Docket NumberNo. E020480,E020480
Citation66 Cal.App.4th 823,78 Cal.Rptr.2d 373
CourtCalifornia Court of Appeals Court of Appeals
PartiesPreviously published at 66 Cal.App.4th 823 66 Cal.App.4th 823, 98 Cal. Daily Op. Serv. 7235, 98 Daily Journal D.A.R. 9974 Barry JOHNSON, Plaintiff and Appellant, v. CITY OF LOMA LINDA, et al., Defendants and Respondents.

RICHLI, Associate Justice.

In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410, the Supreme Court held that a litigant who fails to set aside an adverse administrative decision through a mandamus proceeding is bound by the administrative findings in a subsequent civil suit. Disagreeing with a previous Court of Appeal decision, we conclude that principle bars plaintiff's claim for wrongful termination under the Fair Employment and Housing Act (FEHA) (Gov.Code, 12900 et seq.) even though plaintiff exhausted the administrative remedy provided for by FEHA before filing suit. However, in view of the United States Supreme Court's holding in University of Tennessee v. Elliott (1986) 478 U.S. 788 [106 S.Ct. 3220, 92 L.Ed.2d 635] that unreviewed administrative findings are not binding in a suit under title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (title VII), we conclude plaintiff's title VII claim is not barred because the lower court's judgment denying his administrative mandamus petition based on laches was not a judgment on the merits.

A. Facts

Because this appeal arises from a summary judgment, we accept as true (1) the evidence about which there was no material dispute, and (2) if there was a material dispute, the evidence favoring plaintiff. (Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 251, 48 Cal.Rptr.2d 437.) Viewed in that light, the record shows the following. 1

Plaintiff Barry Johnson was hired by the City of Loma Lindu (the City) in 1989 and became assistant city manager in 1991. In 1992, plaintiff was assigned by John Bernardi, the city manager, to investigate possible sex discrimination by the City's community development director, Dan Smith. Bernardi told the city council members about the investigation. Defendant Robert Christman, a council member and the mayor of the City, said he wanted to see the woman Smith had been harassing. Bernardi asked the council members not to become involved.

While Bernardi was out of town, Christman told plaintiff Smith was a nice guy and had not done anything wrong. According to Bernardi, when he returned Christman continued to try to intervene in the investigation and to persuade Bernardi to drop it.

In September 1992, plaintiff issued a letter of intent to dismiss Smith. Bernardi supported plaintiff's decision. Smith appealed the decision and agreed to a suspension instead. In December 1992, Christman asked plaintiff if Smith's suspension could be converted from working to calendar days and said Smith should be reimbursed for the time off without pay.

In April 1993, Bernardi resigned under threat of termination. Christman and a city council member met with plaintiff, and Christman told plaintiff that the City's fire chief, defendant Peter Hills, would be assuming Bernardi's duties rather than plaintiff. Christman told plaintiff that he was considered to be Bernardi's "axe man," a perception which did not do plaintiff any good in the City, and that plaintiff should go work for another city.

Beginning in May 1993, Hills gradually removed plaintiff's authority and reassigned his duties. Plaintiff attended a budget meeting in May 1993 at which "manipulating the budget in order to justify layoffs" was discussed. Plaintiff understood based on the discussion that the budget would be manipulated to justify layoffs for personal rather than business reasons.

Later in May 1993, Hills stated that Christman had selected four or five positions for layoff, including those held by two employees Smith had allegedly discriminated against and harassed. At this time, the budget was balanced and there had been no analysis to determine whether layoffs were necessary. Hills also said Christman wanted to hire an outside independent contractor to take over plaintiff's last remaining duties.

On June 8, 1993, after a vacation, plaintiff was told by Hills that plaintiff's position was slated for layoff and that the decision was "directly related to" plaintiff's association with Bernardi. Plaintiff said he felt he was being retaliated against due in part to his association with Bernardi. Hills said he could not deny that was part of it. Hills also said the City budget was in a "crisis" because he had shifted funding from the redevelopment fund to the general fund. At the same time, the City hired the independent contractor mentioned above, using funds from the same redevelopment budget from which Hills had removed plaintiff's position due to insufficient funds.

On July 14, 1993, Hills told plaintiff his position was being eliminated from the budget, and there was no other position plaintiff could assume.

B. Procedural Background

Plaintiff filed a grievance seeking reinstatement to his position as assistant city manager. The City's personnel board found that plaintiff's position was properly eliminated in the interest of economy and that the City had not violated any laws against discrimination. The city council upheld the personnel board's decision.

In December 1994, plaintiff filed charges of discrimination with the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC). He alleged in those charges that his termination was in retaliation for protesting actions illegal under FEHA. The same month, plaintiff received "right-to-sue" letters from the DFEH.

Plaintiff brought this action in July 1995. Subsequently, he amended his complaint three times. Insofar as they are relevant to this appeal, plaintiff's claims asserted (1) retaliation for opposing discriminatory practices in violation of FEHA, Government Code section 12940, subdivision (f), against all defendants; (2) retaliation for opposing discriminatory practices in violation of title VII, 42 U.S.C. section 2000e-3(a), against the City; and (3) retaliation for political activity in violation of Labor Code sections 1101, 1102, and 1105, against all defendants. As an additional cause of action, plaintiff joined with the complaint a petition for administrative mandamus pursuant to Code of Civil Procedure section 1094.5 (hereafter, section 1094.5), against the City. Plaintiff sought reinstatement, back pay and benefits, and damages.

Defendants demurred to the first and second amended complaints. Insofar as its rulings on the demurrers are relevant here, the court sustained the individual defendants' demurrer to the second amended complaint as to all causes of action asserted against them, without leave to amend, apparently on the basis of the "discretionary immunity" afforded by Government Code section 820.2.

The City, the sole remaining named defendant, then moved for summary judgment. The court ruled plaintiff was barred by laches from pursuing his administrative mandamus claim. It further ruled plaintiff was required to adjudicate his mandamus claim before pursuing his remaining claims and that, since he could not pursue his mandamus claim, his remaining claims were barred for failure to exhaust administrative/judicial remedies. Accordingly, it granted the motion for summary judgment.


A. Liability Against the City

The court's grant of summary judgment on all of plaintiff's claims against the City was based on its determination that plaintiff was guilty of laches in prosecuting his administrative mandamus proceeding. The threshold question in considering liability against the City therefore is whether that determination was correct.

1. Laches

Laches requires "unreasonable delay in bringing suit 'plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.' [Citation.]" (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826, 614 P.2d 258; accord Craig v. City of Poway (1994) 28 Cal.App.4th 319, 341, 33 Cal.Rptr.2d 528.) "Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained." (Miller v. Eisenhower Medical Center, supra, at p. 624, 166 Cal.Rptr. 826, 614 P.2d 258; accord In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643, 267 Cal.Rptr. 350.) 2

We first consider whether there was unreasonable delay. The final administrative determination in this case came in December 1993 when the city council upheld the personnel board decision. Plaintiff did not file his administrative mandamus petition until July 1995. As of the hearing on the summary judgment motion, January 9, 1997, plaintiff had not brought the mandamus proceeding to trial.

Administrative mandamus proceedings are subject to special procedures designed to expedite their resolution. "In most counties, writ matters are heard in one department and disposed of in a short time...." (Cal. Administrative Mandamus (Cont. Ed. Bar) (2d ed. 1989) § 8.49, pp. 300-301.) The case is heard by the court sitting without a jury. (Code Civ. Proc., § 1094.5, subd. (a).) "There is no trial, in the normal sense of the term. The usual procedure is to introduce the administrative record, together with memoranda by the parties in support of their positions." (8 Witkin, Cal. Procedure (4th ed....

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1 cases
  • Johnson v. City of Loma Linda
    • United States
    • California Supreme Court
    • December 16, 1998
    ...Appellant, v. CITY OF LOMA LINDA et al., Respondents. No. S074261. Supreme Court of California. Dec. 16, 1998. Prior report: Cal.App., 78 Cal.Rptr.2d 373. Petitions for review GEORGE, C.J., and MOSK, KENNARD, BAXTER, WERDEGAR, CHIN and BROWN, JJ. ...

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