Robinson v. Department of Fair Employment & Housing

• Citation: 239 Cal.Rptr. 908,192 Cal.App.3d 1414
• Court: California Court of Appeals Court of Appeals
• Decision Date: 29 May 1987
• Parties: , 47 Fair Empl.Prac.Cas. (BNA) 915 J.E. ROBINSON, Plaintiff and Respondent, v. The DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING et al., Defendants and Appellants. Josephine Grace SAUL, Real Party in Interest. G002981.

Page 908

239 Cal.Rptr. 908

192 Cal.App.3d 1414, 47 Fair Empl.Prac.Cas. (BNA) 915

J.E. ROBINSON, Plaintiff and Respondent, v. The DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING et al., Defendants and Appellants Josephine Grace SAUL, Real Party in Interest.

G002981.

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

May 29, 1987.

As Modified June 26, 1987.

Review Denied Aug. 19, 1987.

[192 Cal.App.3d 1415] John K. Van de Kamp, Atty. Gen., Andrea Sheridan Ordin, Chief Asst. Atty. Gen., Marian M. Johnston and Henry Torres, Jr., Deputy Attys. Gen., for defendants and appellants.

Grace E. Emery for plaintiff and respondent.

No appearance for real party in interest.

OPINION

WALLIN, Acting Presiding Justice.

The Department of Fair Employment and Housing (Department) and the Fair Employment and Housing Commission (Commission) appeal a judgment issuing a writ of mandate commanding them to withdraw an accusation of sex discrimination against Dr. J.E. Robinson, a dentist. Appellants contend the superior court was without jurisdiction to grant the writ because Robinson failed to exhaust his administrative remedies under the California Fair Employment and Housing Act (FEHA). (Gov.Code, § 12900 et seq.) Appellants are correct this threshold issue is dispositive, and the judgment must be reversed.

Robinson employed six persons in his dental office. His receptionist worked five full days a week, his two dental assistants each worked four and one-half days, and his three dental hygienists each worked from one to four days a week. Real party in interest, Josephine Grace Saul, was a dental assistant in Robinson's office for several years before taking a six week maternity leave. She was terminated on the day she returned to work. Saul filed a complaint with the Department alleging Robinson discriminated against her because of her sex. The Department, after conducting a preliminary investigation, filed an accusation with the Commission. The case was then scheduled for an administrative hearing.

Rather than participate in the hearing, Robinson petitioned the superior court for a writ of mandate claiming he was not an employer under the FEHA because he did not regularly employ five or more persons. The court granted the petition, finding Robinson's failure to exhaust his administrative remedies did not bar judicial review and the Department and the Commission were without jurisdiction to proceed with the accusation against him.

* * * * * *

The FEHA provides an elaborate scheme of a hearing (Gov.Code, §§ 12967, 12968, 12969, 12972, 11513), administrative review (Gov.Code, § 11517), and reconsideration (Gov.Code, § 11521). After these proceedings, written findings of fact and a determination are issued (Gov.Code, § 12970) and the decision is thereafter subject to judicial review by a petition for a writ of mandate (Gov.Code, § 11523, Code Civ.Proc., § 1094.5). The jurisdictional defect alleged by Robinson would have been considered by the Commission at the hearing on the merits had he chosen to participate. (Cal.Admin.Code, tit. 2, § 7440.) However, he sought to bypass this statutory scheme to resolve employment issues administratively by first seeking recourse in the superior court.

The trial court's intervention prior to Robinson's exhaustion of his administrative remedies violated fundamental principles of jurisdiction. Judicial review is unavailable until all administrative remedies have been exhausted, and "a court violating the rule acts in excess of jurisdiction...." (Morton v. Superior Court (1970) 9 Cal.App.3d 977, 981, 88 Cal.Rptr. 533, quoting Hollon v. Pierce (1967) 257 Cal.App.2d 468, 475, 64 Cal.Rptr. 808.) This long-settled rule of judicial administration has been reiterated in a variety of similar contexts. (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12-14, 154 Cal.Rptr. 893, 593 P.2d 838; Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197, 200 Cal.Rptr. 855; Thomas S. Castle Farms, Inc. v. Agricultural Labor Relations Bd. (1983) 140 Cal.App.3d 668, 676, 189 Cal.Rptr. 687; American Alliance Ins. Co. v. State Bd. of Equalization (1982) 134 Cal.App.3d 601, 608-609, 184 Cal.Rptr. 674; Alta Loma School Dist. v. San Bernardino County Com. on School Dist. Reorganization (1981) 124 Cal.App.3d 542, 554-556, 177 Cal.Rptr. 506; Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 8, fn. 4, 173 Cal.Rptr. 856; Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 681, 172 Cal.Rptr. 844; California Coastal Farms, Inc. v. Doctoroff (1981) 117 Cal.App.3d 156, 160, 172 Cal.Rptr. 552; California Coastal Farms v. Agri al Labor Relations Bd. (1980) 111 Cal.App.3d 734, 740, 168 Cal.Rptr. 838; State Bd. of Equalization v. Superior Court (1980) 111 Cal.App.3d 568, 571, 169 Cal.Rptr. 3; United Farm Workers v. Superior Court (1977) 72 Cal.App.3d 268, 271, 140 Cal.Rptr. 87.) Moreover, this legislatively mandated policy promoting the resolution of disputes by specialized boards and fostering judicial economy has been well explained in the above cases. No more needs to be said here.

Robinson relies on a solitary case to rebut the exhaustion of remedies bar. In Motors Ins. Corp. v. Division of Fair Employment Practices (1981) 118 Cal.App.3d 209, 173 Cal.Rptr. 332, two employers sought writs of prohibition and/or mandate (Code Civ.Proc., § 1085.) to restrain the Division and the Commission ¹ from proceeding on an...