State Bd. of Chiro. Exam. v. Superior Court

• Decision Date: 28 February 2007
• Docket Number: No. C052554.,C052554.
• Citation: 148 Cal.App.4th 142,55 Cal.Rptr.3d 374
• Court: California Court of Appeals Court of Appeals
• Parties: STATE BOARD OF CHIROPRACTIC EXAMINERS et al., Petitioners, v. The SUPERIOR COURT of Sacramento COUNTY, Respondent, Carole M. Arbuckle, Real Party In Interest.

55 Cal.Rptr.3d 374

148 Cal.App.4th 142

STATE BOARD OF CHIROPRACTIC EXAMINERS et al., Petitioners, v. The SUPERIOR COURT of Sacramento COUNTY, Respondent Carole M. Arbuckle, Real Party In Interest.

No. C052554.

Court of Appeal, Third District.

February 28, 2007.

As Modified February 28, 2007.

Bill Lockyer, Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Alicia M.B. Fowler, Lyn Harlan and Noreen P. Skelly, Deputy Attorneys General, for Petitioners.

No appearance for Respondent.

Garcia & Associates, Gaspar Garcia, II, Sacramento, for Real Party in Interest.

MORRISON, J.

Carole M. Arbuckle sued her employer, the State Board of Chiropractic Examiners and its executive director, Jeanine R. Smith (collectively the Board except where context indicates otherwise), alleging adverse employment actions were taken against her in retaliation for her whistle-blower reports, specifically her allegation that a member of the Board allowed the member's own chiropractic license to expire but improperly continued to act as a Board member. Arbuckle first filed a complaint with the State Personnel Board (SPB) but did not request a hearing after receiving an adverse "Notice of Findings" from the SPB executive officer. She then filed this civil tort suit. The Board unsuccessfully moved for summary judgment, arguing this suit was barred for her failure to exhaust administrative and judicial remedies. After the Board petitioned this court for a writ of mandate, we issued an alternative writ and stayed the proceedings.

The adverse notice of findings was deemed to be the final decision of the SPB when it went unchallenged. Had Arbuckle requested a hearing the SPB would either have granted it, resulting in a new SPB decision which could be challenged by a writ of administrative mandamus, or the SPB would have denied it, and adopted the notice of findings as its own decision, which similarly could be challenged. The fact that the SPB has discretion whether to grant a further hearing does not give a claimant the right to abort the administrative remedies and proceed to court. The statutes and pertinent regulations governing whistleblower claims contemplate a civil suit may be filed after the SPB finds in favor of the claimant or fails to issue findings not where the SPB finds against the claimant and the claimant fails to to set that finding aside. The unchallenged notice of findings, deemed to be the SPB decision, is a quasi-judicial decision that no retaliation occurred: It bars Arbuckle's suit under principles of issue preclusion (collateral estoppel). Accordingly, the Board was entitled to summary judgment and we shall issue a writ so ordering.

PROCEDURAL BACKGROUND

On June 17, 2002, Arbuckle filed her complaint with the SPB, which she amended on July 23, 2002. The gist was that although she had been a good employee, after she discovered that a Board member's license had lapsed the Board retaliated against her in various ways.

On August 14, 2002, the SPB adopted regulations governing whistleblower complaints, effective immediately. The parties agree that those regulations govern this case. Those regulations were substantially amended in March 2006. For convenience, we provide the text of the former regulations in an appendix. We will cite to them as "former Rule ___" to distinguish them from current provisions of the California Code of Regulations.

On November 6, 2002, Arbuckle filed a claim with the State Board of Control, which was rejected.

The SPB Executive Officer served a notice of findings on January 28, 2003, rejecting Arbuckle's complaint. This is not a summary rejection, but a 16-page analysis of the facts and law based on his review of over 500 pages of documents submitted by Arbuckle and the Board. (See Gov.Code, § 18675, subd. (b); further unspecified section references are to this code.) The decision discusses in detail the alleged protected acts Arbuckle took as a whistleblower and the alleged acts the Board took to punish her. It found that some of her acts qualified as "protected disclosures" in the rubric of whistleblower cases, but only two of her claims of adverse actions satisfied the legal standard. There was no "nexus," or showing that a cause of those adverse actions was the disclosures, because Arbuckle failed to show that those who took the adverse actions knew about the disclosures. (See Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384, 37 Cal.Rptr.3d 113; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69-70, 105 Cal.Rptr.2d 652.) In any event, the Board showed "by clear and convincing" evidence that the same employment actions would have been taken.

The notice of findings states Arbuckle could "petition for hearing" before the SPB "no later than 30 days" after service; "If no party files a petition for hearing within 30 days following service of this Notice of Findings, this recommendation shall become the final decision of the [SPB]. If any party files a timely petition for hearing, this Notice of Findings shall become the final decision of the [SPB] if all such timely filed petitions for hearing are ultimately denied by the [SPB]."

Arbuckle conceded in the trial court that she did not petition for a hearing, and that by operation of law the Notice of Findings became a final SPB decision, and that she did not seek judicial review by filing a writ of administrative mandate.

Instead, on February 21, 2003, before the 30 days in which to petition the SPB for a hearing elapsed, Arbuckle filed the instant suit. The complaint is difficult to understand because it is clogged with evidentiary facts and legal assertions, and fails to state claims "in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a)(1); cf. Krug v. Meehan (1952) 109 Cal.App.2d 274, 277, 240 P.2d 732 ["The complaint must allege ultimate facts, not evidentiary facts or conclusions of law"].) However, Arbuckle does not dispute that it is based on the same facts as the SPB complaint.

On April 17, 2008, Judge Gray overruled a demurrer based on judicial exhaustion, finding that "filing the claim with the SPB is the only requirement prior to suit." On December 1, 2004, Judge Cecil denied a summary judgment motion on the same ground.

On January 26, 2006, the Board again moved for summary judgment, alleging that an intervening California Supreme Court decision, Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 25 Cal.Rptr.3d 320, 106 P.3d 976 {Campbell), justified bringing a new motion because it changed the law. The relevant facts supporting and opposing the motion consist of the procedural history we have outlined, as well as judicial notice of pertinent statutes and regulations.

After Judge Chang denied the motion the Board filed this mandamus petition. We stayed the trial court proceedings and issued an alternative writ.

DISCUSSION

We will first briefly discuss the doctrines of administrative and judicial exhaustion. We will then outline the proceedings which were available to Arbuckle. We will then discuss the theories raised by Arbuckle in defense of her claimed entitlement to pursue a tort suit.

I. Administrative and Judicial Exhaustion

Administrative and judicial exhaustion questions may overlap and some cases speak of one when they mean the other. (Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 240-245, 244 Cal.Rptr. 764 [distinguishing the two and exposing confusion in other cases] (Knickerbocker).)

"[I]n Westlake Community Hosp. v. Superior Court [ (1976) 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410 (Westlake)], this court held that unless a party to a quasi-judicial proceeding challenges the agency's adverse findings made in that proceeding, by means of a mandate action in superior court, those findings are binding in later civil actions.[fn.] This requirement of exhaustion of judicial remedies is to be distinguished from the requirement of exhaustion of administrative remedies. [Citation.] Exhaustion of administrative remedies is `a jurisdictional prerequisite to resort to the courts.' [Citations.] Exhaustion of judicial remedies, on the other hand, is necessary to avoid giving binding `effect to the administrative agency's decision, because that decision has achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action.' [Citation.]

"In Westlake, supra, 17 Cal.3d 465, [131 Cal.Rptr. 90, 551 P.2d 410,] a hospital's revocation of a doctor's staff privileges was upheld by the hospital's judicial review committee and board of directors. Without first challenging the board's final decision in an administrative mandate proceeding in superior court, the doctor filed a tort action in superior court. We held that `plaintiff must first succeed in overturning the quasi-judicial action before pursuing her tort claim against defendants.' . . . We explained that `so long as such a quasi-judicial decision is not set aside through appropriate review procedures the decision has the effect of establishing the propriety of the [defendant's] action.' [Citation.] A quasi-judicial decision is set aside when a court in a mandate proceeding determines that the decision cannot stand `either because of a substantive or procedural defect[.]' [Citation.]"

"Paramount to the Westlake holding were these two reasons: (1) the interest in according proper respect to an administrative agency's quasi-judicial procedures by precluding a party from circumventing the established process for judicial review of such decisions by means of a petition for administrative mandate; and (2) `providing a uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions.'" (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70, 99 Cal.Rptr.2d 316, 5 P.3d 874 (Johnson).)

As we will explain, Arbuckle's failure to overturn the...