Schifando v. City of Los Angeles

• Court: California Court of Appeals
• Writing for the Court: Kitching
• Citation: Schifando v. City of Los Angeles, 118 Cal.Rptr.2d 286, 97 Cal.App.4th 312 (Cal. App. 2002)
• Decision Date: 29 March 2002
• Docket Number: No. B142999.,B142999.
• Parties: Steve SCHIFANDO, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

118 Cal.Rptr.2d 286

97 Cal.App.4th 312

Steve SCHIFANDO, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

No. B142999.

Court of Appeal, Second District, Division 3.

March 29, 2002.

Review Granted July 10, 2002.

Law Offices of Robert M. Ball, Robert M. Ball and Loyst P. Fletcher for Plaintiff and Appellant.

James K. Hahn, City Attorney, Leslie E. Brown, Assistant City Attorney, and Marie McTeague, Deputy City Attorney, for Defendant and Respondent.

KITCHING, J.

We address an issue in this case that the California Supreme Court has identified but has not decided. The issue is whether a city employee must exhaust both the administrative remedy provided by the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) and an administrative remedy provided by the city charter. We conclude consistent with the purposes of the exhaustion of administrative remedies requirement that a city employee must exhaust both administrative remedies before filing suit.

Plaintiff Steve Schifando appeals the dismissal of his complaint against defendant City of Los Angeles after the court sustained without leave to amend the city's demurrer to his complaint. The complaint alleges a single count for employment discrimination based on physical disability under FEHA. Schifando contends (1) the complaint adequately alleges exhaustion of the administrative remedy provided by FEHA; (2) any pleading defect can be corrected, so the court abused its discretion by sustaining the demurrer without leave to amend; and (3) he need not exhaust the administrative remedy provided by the city charter. We affirm the judgment based on his failure to exhaust the administrative remedy provided by the city charter.

FACTUAL AND PROCEDURAL BACKGROUND

1. Schifando's Resignation

The complaint alleges as follows.

Schifando worked for the city's Parks and Recreation Department as a Storekeeper II. He suffered from severe hypertension that caused him to be dizzy and lightheaded in stressful situations and affected his major life functions. He informed two supervisors of his condition.

He met with the two supervisors in August 1998 to discuss his objections to recent changes in his job responsibilities. They argued with him with the intention of causing him to "blow his top" due to his medical condition. He began to sweat profusely during the meeting, his face turned red, his chest felt constricted, and he had difficulty breathing. Finally he exclaimed "I can't take it anymore, I quit." The supervisors asked him to "put it in writing" and provided a piece of paper, on which Schifando wrote "I quit."

The supervisors then left and returned with a blank Notice of Vacancy and/or Request for Certification form. They did not complete the form or explain it to him, but asked him to sign it. He complied in order to avoid more of what he believed to be a dangerous confrontation, and due to his diminished decisionmaking capability.

Schifando soon reconciled with one of the supervisors, but the other supervisor processed the signed form, which Schifando then learned was a resignation form. Although the complaint does not specifically so allege, it implies that the city terminated his employment based on the signed resignation form.

2. The Complaint

Schifando sued the city in November 1999 alleging one count under FEHA for employment discrimination based on physical disability, arising from the alleged forced resignation. The complaint also alleges that he received a right-to-sue letter from the Department of Fair Employment and Housing (DFEH) in June 1999, attaches a copy of the letter, and alleges that the complaint was filed within the time allowed after the right-to-sue letter.

3. The City's Demurrer

The city demurred on the grounds that the complaint does not allege sufficient facts to establish that Schifando was disabled or that he was able to perform the essential functions of his job either with or without reasonable accommodations, and that it does not allege that he filed an administrative complaint with the DFEH by August 1999 as required by statute (Gov.Code, § 12960) or describe the specific allegations of the administrative complaint, among other grounds.

The court heard argument by the city, concluded that the complaint did not allege that Schifando had filed an administrative complaint with the DFEH or that he had filed an administrative complaint within one year after the incident, sustained the demurrer without leave to amend on that basis, and dismissed the complaint.

CONTENTIONS

Schifando's opening brief contends (1) the complaint adequately alleges exhaustion of the administrative remedy provided by FEHA; and (2) because amendment can correct any defect, the court abused its discretion by sustaining the demurrer without leave to amend. His reply brief contends (3) he need not exhaust the administrative remedy provided by the city charter because the exhaustion requirement in a FEHA action is limited to the FEHA administrative remedy.

The city contends the complaint is defective because (1) it does not adequately allege that Schifando was physically disabled, that he was able to perform the essential functions of his job even with reasonable accommodations, or that he suffered an adverse employment action as a result of his disability; and (2) it does not allege the date that he filed his administrative complaint or describe the contents of the administrative complaint. Most important, the city contends (3) Schifando's complaint does not allege, and Schifando cannot properly allege, exhaustion of the administrative remedy provided by the former city charter.

DISCUSSION

1. Standard of Review

On appeal from a judgment dismissing a complaint after a demurrer is sustained without leave to amend, we assume the truth of the properly pleaded factual allegations of the complaint, facts that can be inferred from those expressly pleaded, and facts of which judicial notice may be taken, and determine de novo whether the complaint alleges facts sufficient to state a cause of action on any legal theory. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Shaolian v. Safeco Ins. Co. (1999) 71 Cal. App.4th 268, 271, 83 Cal.Rptr.2d 702.) It is an abuse of discretion to sustain a demurrer if there is a reasonable possibility that the defect can be cured by amendment. (Blank, at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.) The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. (Ibid.)

Although our review is de novo, we ordinarily will not consider potential legal theories available, possible amendments to the complaint, or other grounds for error unless the appellant has briefed those issues and affirmatively demonstrated trial court error. (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564, 71 Cal.Rptr.2d 625; Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948, 36 Cal. Rptr.2d 360; cf. Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6, 76 Cal.Rptr.2d 457.)

Schifando does not seek to amend the complaint to allege that he exhausted the remedy provided by the city charter, and he raises no issue concerning the procedural posture in which the exhaustion issue arises. Since he addresses the exhaustion issue and acknowledges that he has not exhausted the administrative remedy provided by the city charter, we will decide whether he was required to do so.

2. Exhaustion of Administrative Remedies

A claimant must exhaust the administrative remedies available before resorting to the courts. This fundamental rule of procedure binds all courts. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293, 109 P.2d 942.) The exhaustion requirement applies to statutory administrative remedies and also to internal grievance procedures of public and private organizations. (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 474-477, 131 Cal.Rptr. 90, 551 P.2d 410; Moreno v. Cairns (1942) 20 Cal.2d 531, 535, 127 P.2d 914; City of Los Angeles v. Superior Court (Heckl) (1966) 246 Cal.App.2d 73, 75-76, 54 Cal.Rptr. 442, disapproved on another ground in City of Los Angeles v. Superior Court (Burns) (1973) 8 Cal.3d 723, 732, 106 Cal.Rptr. 15, 505 P.2d 207; see Rojo v. Kliger (1990) 52 Cal.3d 65, 86, 276 Cal.Rptr. 130, 801 P.2d 373.)

Allowing the administrative agency or organization an opportunity to redress the alleged wrong without interference by the courts may make litigation unnecessary and relieve the courts of an unnecessary burden. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 501, 87 Cal.Rptr.2d 702, 981 P.2d 543.) Even if the claimant does not obtain complete relief, the claimant may obtain partial relief and reduce the likelihood and scope of litigation. (See ibid.; Westlake Community Hosp. v. Superior Court, supra, 17 Cal.3d at p. 476, 131 Cal.Rptr. 90, 551 P.2d 410.) An administrative remedy ordinarily provides a more economical and less formal forum to resolve disputes and provides an opportunity to mitigate damages. (Rojo v. Kliger, supra, 52 Cal.3d at p. 83, 276 Cal.Rptr. 130, 801 P.2d 373.) The exhaustion requirement also promotes the development of a more complete factual record and allows the agency to apply its expertise, both of which assist later judicial review if necessary. (Sierra Club, at p. 501, 87 Cal.Rptr.2d 702, 981 P.2d 543; Westlake, at p. 476, 131 Cal.Rptr. 90, 551 P.2d 410.) All of these factors both promote judicial economy and afford due respect to the administrative or organizational dispute resolution process.

The failure to exhaust administrative remedies may be excused if the administrative remedy is inadequate or if pursuit of the remedy would be futile or would cause irreparable injury. (See, e.g., County of San Diego v. State of California (1997) 15 Cal.4th 68, 89, 61 Cal.Rptr.2d 134, 931 P.2d 312; Glendale City Employees' Assn.,...