Logan v. Southern Cal. Rapid Transit Dist.

• Decision Date: 27 September 1982
• Citation: 136 Cal.App.3d 116,185 Cal.Rptr. 878
• Court: California Court of Appeals Court of Appeals
• Parties: Attis E. LOGAN, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, a local public entity; United Transportation Union, a labor union; Local 1536, United Transportation Union, a local labor union, Defendants and Respondents. Civ. 61989.

Page 878

185 Cal.Rptr. 878

136 Cal.App.3d 116

Attis E. LOGAN, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, a local public entity; United Transportation Union, a labor union; Local 1536, United Transportation Union, a local labor union, Defendants and Respondents.

Civ. 61989.

Court of Appeal, Second District, Division 3, California.

Sept. 27, 1982.

Joseph Posner, Los Angeles, and Contos & Bunch, Woodland Hills, for plaintiff and appellant

Suzanne B. Gifford, Los Angeles, for defendant and respondent Southern California Rapid Transit Dist.

Kessler & Drasin and Gary Kessler and Lawrence Drasin, Los Angeles, for defendants and respondents United Transp. Union and Local 1536, United Transp. Union.

KLEIN, Presiding Justice.

STATEMENT OF FACTS

Plaintiff and appellant Attis E. Logan (Logan) appeals from a judgment of dismissal after demurrers by defendants and respondents Southern California Rapid Transit District (RTD) and United Transportation Union (UTU) were sustained.

For reasons hereinafter discussed, we affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND ¹

On July 19, 1978, the date of the incident involved, Logan was employed by the RTD as a bus driver. He was also a member in good standing of the UTU. On that date while driving a bus, he allegedly was attacked by an intoxicated female passenger who weighed in excess of 200 pounds. Logan attempted to defend himself and his bus, and to escape. During the altercation, the female fell from the bus onto the pavement sustaining minor injury. She never made any claim against the RTD. Part of the incident was witnessed by a security guard at a business in the locale of the incident. Logan reported the matter promptly to the RTD.

On July 25, 1978, the RTD discharged Logan, allegedly for an infraction of the rules regarding disputes with passengers, which discharge he reported to the UTU. However, in a subsequent report, the RTD indicated he had been fired for willful misconduct, implying he was the aggressor in the altercation.

A hearing was held to consider the circumstances of his discharge. The UTU on Logan's behalf sent a representative who was unfamiliar with all the facts, and who failed to call the security guard as a witness. The only evidence allegedly available at the hearing was a partial statement of the security guard taken by an RTD investigator.

Logan persisted in attempting to get his job back, including requesting the UTU to compel arbitration with the RTD. The UTU was the only party under the union agreement entitled to demand arbitration. He appealed to the RTD and the UTU, while suffering great financial pressure and distress. He did get unemployment benefits over RTD's objection. When Logan appealed to the national president of the UTU, he was informed he was suspended for nonpayment of dues as of September 1978.

In June 1980, Logan filed his second amended complaint against the RTD for: "1. Violation of Constitutional Rights; 2. Intentional Infliction of Emotional Distress; 3. Breach of Collective Bargaining Agreement; 5. Breach of Covenant of Good Faith and Fair Dealing." As against the UTU, Logan alleged "4. Breach of Duty of Fair Representation; 2. Intentional Infliction of Emotional Distress."

Both RTD and the UTU demurred, alleging that Logan's proper remedy was a writ of mandate under Code of Civil Procedure section 1094.5, ² a prerequisite to a suit for The trial court sustained the demurrers with leave to amend. The trial court held that Logan did not have a remedy for damages, but only for a writ of mandate from the RTD and UTU's alleged conduct. Logan did not amend his complaint and chose instead to appeal.

damages. Both entities also demurred on the ground that Logan failed to state a cause of action.

CONTENTIONS

Logan contends his second amended complaint adequately sets forth several causes of action, which contention is controverted by RTD and UTU.

DISCUSSION

A. Logan's Claims Against the RTD.

1. Failure To Seek Administrative Review Pursuant to Section 1094.5 Precludes Logan's Suits For Tort And Contract Damages Against the RTD.

The courts have repeatedly held that administrative writ of mandate provided for in section 1094.5 is the appropriate remedy for the purpose of inquiring into the validity of any final administrative agency decision made as the result of a proceeding which by law requires a hearing, evidence to be considered, and a discretionary determination of fact vested in an inferior tribunal. (Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 849, 171 Cal.Rptr. 619, 623 P.2d 180; Boren v. State Personnel Board (1951) 37 Cal.2d 634, 637, 234 P.2d 981.)

Here, Logan as an employee of a state funded agency had a hearing to review his discharge at which his termination was upheld. Based on his belief that there was a denial of due process at the hearing, Logan filed various tort and contract claims for damages as well as a Title 42, United States Code section 1983 suit. ³

The law is settled on the propriety of filing a suit for damages before such a plaintiff has requested a section 1094.5 writ of review. In Holder v. California Paralyzed Veterans Assn. (1980) 114 Cal.App.3d 155, 157-158, 170 Cal.Rptr. 455, plaintiff, ousted from membership in the association, alleged that procedural defects in the hearing held by the association had deprived him of certain fundamental due process rights, and sought damages for intentional and negligent infliction of emotional distress. The defendant's demurrer had been sustained. (Id., at p. 159, 170 Cal.Rptr. 455.) The court held that a due process claim makes even more appropriate the uniform practice of judicial review of quasi-judicial decisions. (Holder v. California Paralyzed Veterans Assn., supra, 114 Cal.App.3d at pp. 163-164, 170 Cal.Rptr. 455.)

Logan's case is very similar in that he is also asking for damages for intentional infliction of emotional distress as well as other relief.

Although Logan's third and fifth counts sound in contract, any cause of action that involves the substance of the hearing held by the RTD, whether such cause of action sounds in tort or contract, must be tested under a section 1094.5 writ. (Interior The bare allegation in Logan's complaint that he "has exhausted his administrative remedies" does not relieve him of the burden of doing so and properly pleading the results thereof. Logan's actions for damages against the RTD fail because he did not apply for a judicial review of the decision and findings of the administrative agency here involved pursuant to section 1094.5, which application amounts to a condition precedent to his filing a complaint for damages.

                Systems, Inc. v. Del E. Webb Corp.  (1981) 121 Cal.App.3d 312, 319-320, 175 Cal.Rptr. 301.)   A [136 Cal.App.3d 124] plaintiff may not ignore the administrative decision by filing a separate action at law.  (Id., at p. 320, 175 Cal.Rptr. 301.)
                

2. Logan's Pleadings Against the RTD Fail To Meet the Requirements For a U.S.C. sec. 1983 Claim.

Initially, we determine that a U.S.C. sec. 1983 action can be brought in state court because absent a grant of exclusive jurisdiction, state courts have concurrent authority to adjudicate federally created causes of action. (Williams v. Horvath (1976) 16 Cal.3d 834, 837, 129 Cal.Rptr. 453, 548 P.2d 1125.)

Logan is correct in his contention that a plaintiff need not exhaust state mandated judicial or administrative remedies before bringing a U.S.C. sec. 1983 claim. (McNeese v. Board of Education (1963) 373 U.S. 668, 671-672, 83 S.Ct. 1433, 1435, 10 L.Ed.2d 622.) The United States Supreme Court only recently reaffirmed its ruling of McNeese and its progeny. (Patsy v. Board of Regents of the State of Florida (1982) --- u.s. ----, ---- - ----, ----, 102 s.ct. 2557, 2559-2560, 2566, 73 L.Ed.2d 172, 177-178, 185.) The court grounded its decision on the legislative history and the congressional intent of the Civil Rights of Institutionalized Persons Act, 42 U.S.C. section 1997 et seq., as well as U.S.C. sec. 1983. (Id., 457 U.S. at pp. ---- - ----, 102 S.Ct. at pp. 2561-2566, 73 L.Ed.2d at pp. 179-185.)

California in turn has held that the state may not impair federally created rights or impose conditions upon them. (See Adler v. Los Angeles Unified School Dist. (1979) 98 Cal.App.3d 280, 288, 159 Cal.Rptr. 528; Graham v. City of Biggs (1979) 96 Cal.App.3d 250, 255-256, 157 Cal.Rptr. 761; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713, 152 Cal.Rptr. 65.)

For Logan to recover under this section however, he must plead that a person deprived him of a right while acting under color of law of any statute, ordinance or regulation, custom, or usage of any state; that the right of which he was deprived was one secured by the Constitution or the law of the United States; and that his loss of life, liberty or property was a deprivation accomplished without due process of law. (Parratt v. Taylor (1981) 451 U.S. 527, 535-537, 101 S.Ct. 1908, 1913-1914, 68 L.Ed.2d 420, 429-430.) RTD must be shown to be a "person" who if acting under "color of law" would be liable.

a. Persons acting under color of law.

RTD is a state created agency (Pub.Util.Code, § 30000 et seq.), but it is not a state agency per se. Because it is a public agency rather than a state agency, it is not subject to the Eleventh Amendment which precludes suits against the state or its officials in most circumstances. (Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471.) Therefore RTD as a local governing agency or body may be sued for damages under U.S.C. sec. 1983 for any unconstitutional policies, ordinances or regulations. (Monell v. New York City Dept. of Social Services (1978) 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611.)

b. The constitutionally protected property right.

Logan must also show that the right of which he was deprived was a constitutionally The courts must look to...