Milton v. Kings Cnty. Pers. Appeals Bd.

TY MILTON, Plaintiff and Appellant, v. KINGS COUNTY PERSONNEL APPEALS BOARD, Defendant and Respondent,COUNTY OF KINGS, Real Party in Interest and Respondent.

F075453

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

April 5, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Kings Super. Ct. No. 16C0096)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. H.N. Papadakis, Judge.^*

Bennett, Sharpe, Delarosa, Bennett & LiCalsi, and Eric J. LiCalsi for Plaintiff and Appellant.

Colleen Carlson, County Counsel, and Annureet K. Grewal, Deputy County Counsel, for Defendant and Respondent and Real Party in Interest and Respondent.

-ooOoo- Appellant Ty Milton worked as a deputy sheriff in Kings County for about 19 years before resigning effective November 7, 2015. Milton was also a member of the Kings County Deputy Sheriff's Association (DSA). A memorandum of understanding (MOU) between the DSA and Kings County (County) was executed in August 2013. This MOU was in effect from August 13, 2013, and July 31, 2016.

Article 10 of the MOU outlined a "Grievance Procedure" to provide for "systematic consideration of an individual employee's grievance." The MOU created a Personnel Appeals Board to hear grievances pursuant to Kings County's personnel rules.

The MOU identified several "procedural steps" of the grievance process. First the employee should discuss the matter informally with their immediate supervisor. If that does not result in a mutually acceptable solution, the employee must submit the grievance in writing to their supervisor's superior. After a formal hearing, at which the employee may be accompanied by a representative, the supervisor's superior must render a written decision. If the employee is dissatisfied with the written decision, the employee may present the grievance to their "department head," who would then issue his or her own written decision. If the employee is again dissatisfied, he or she may present the grievance to the Personnel Appeals Board.

In 2015, a grievance arose. The parties do not describe the details of the dispute, presumably because it has little bearing on the issues presented in this appeal. Broadly put, appellant believed he could elect to receive a particular postemployment benefit¹ in the form of continuing a portion of his health benefit, rather than as a cash payout.

Appellant discussed the issue with unnamed "officials" of the County. The officials indicated appellant was only eligible to receive the benefit as a cash payout. A lawyer with the DSA then sent a formal, written grievance to the human resources director of Kings County. The human resources director concluded in writing thatappellant was not eligible for the "retiree health benefits" granted by Article 23 of the MOU. Appellant then requested in writing that the grievance be presented to the Personnel Appeals Board.

The Personnel Appeals Board held a hearing on January 12, 2016, with witness testimony and documentary evidence. On January 25, 2016, the Personnel Appeals Board decided against appellant. In a letter to DSA's counsel dated January 27, 2016, the Personnel Appeals Board provided a copy of its official decision. The letter also contained the following text:

"Notice to the Parties: Decisions of the Appeals Board are final and binding unless appealed in accordance with section 1060 of the Personnel Rules, which has been included for your reference. The time within which either party may seek judicial review of this decision is governed by Section 1094.6 of the California Code of Civil Procedure."

The letter enclosed a copy of the decision, the last page of which had the following text:

"As per Kings County Personnel Rule

"1060 Board of Supervisors Review

"If either party so desires, the decision of the Board may be submitted for consideration by the Board of Supervisors. The action of the Board of Supervisors shall be final and binding. Requests for review shall be made in writing within ten (10) working days from the date of the Appeals Board decision. The Board of Supervisors shall consider the request at their next regularly scheduled meeting or one that is mutually acceptable to both parties.

"NOTICE TO THE PARTIES:

"The time within which either party may seek judicial review of the final decision is governed by Section 1094.6 of the California Code of Civil Procedure."

Important here, appellant did not submit the issue to the Board of Supervisors. Appellant filed the present action in Kings County Superior Court on April 19, 2016.

Respondent filed a demurrer, contending appellant failed to exhaust his administrative remedies because he did not submit the grievance to the Board of Supervisors. The court sustained the demurrer with leave to amend.

Appellant filed an amended petition for writ of mandate and again respondent filed a demurrer on the ground appellant failed to exhaust his administrative remedies. The court sustained the demurrer without leave to amend, and subsequently entered a judgment of dismissal. Appellant appeals the judgment. We affirm.

DISCUSSION

I. Administrative Procedure to Seek Review by the Board of Supervisors Pursuant to Personnel Rule 1060 was not "Wholly Inadequate" so as to Excuse Failure to Exhaust all Administrative Remedies

A. Law

1. Standard of Review

" ' " 'On appeal from an order of dismissal after an order sustaining a demurrer, our standard of review is de novo, i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.' " [Citation.] In reviewing the complaint, "we must assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable." [Citation.] We may affirm on any basis stated in the demurrer, regardless of the ground on which the trial court based its ruling. [Citation.]' [Citation.]" (Ward v. Tilly's, Inc. (2019) 31 Cal.App.5th 1167, 1174.)

2. Exhaustion of Administrative Remedies

" 'In general, a party must exhaust administrative remedies before resorting to the courts. [Citations.] Under this rule, an administrative remedy is exhausted only upon "termination of all available, nonduplicative administrative review procedures." [Citations.]' [Citations.]" (Williams & Fickett v. County of Fresno (2017) 2 Cal.5th 1258, 1267-1268.) " 'Exhaustion of administrative remedies is 'a jurisdictionalprerequisite to resort to the courts.' [Citation]." (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321.)

"[E]xhaustion is a judicially-created rule of procedure" (Mokler v. County of Orange (2007) 157 Cal.App.4th 121, 134) that has "evolved by the courts ...." (Patane v. Kiddoo (1985) 167 Cal.App.3d 1207, 1214.)

3. Exhaustion Excused when Administrative Remedy is Wholly Lacking

However, "the exhaustion requirement is inapplicable where an effective remedy is wholly lacking [citation] ...." (County of Los Angeles v. Farmers Ins. Exchange (1982) 132 Cal.App.3d 77, 86.) "To be adequate, a remedy must afford the individual fair procedure rights." (Bollengier v. Doctors Medical Center (1990) 222 Cal.App.3d 1115, 1128.) "The concept of 'fair procedure' does not require rigid adherence to any particular procedure, to bylaws or timetables. [Citation.]" (Id at p. 1129.) At a minimum, fair procedure requires adequate notice of the administrative action proposed or taken, and a reasonable opportunity to be heard. (Ibid.; see also Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 729, 740-741 (Payne).)

Appellant argues his administrative remedy was inadequate because Personnel Rule 1060 does not specify a standard of review, burden of proof, scope of record, whether witnesses, briefs, or oral argument will be permitted, and whether the Board of Supervisor's decision will be written. Appellant argues Personnel Rule 1060 does not provide "clearly defined machinery" for appealing the Appeals Board decision. We think appellant misunderstands the "clearly defined" requirement for administrative remedies.

In Rosenfield v. Malcolm (1967) 65 Cal.2d 559 (Rosenfield), the Supreme Court held that the mere fact that an official body retains a continuing supervisory or investigatory power does not, in itself, constitute an adequate administrative remedy.The statute or regulation² under which the body's power is exercised must "establish[] clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties." (Id. at p. 566.)

The cases Rosenfield primarily relied upon involved administrative schemes that were not just undetailed, they were fundamentally lacking. In Henry George School of Social Science of San Diego v. San Diego Unified School Dist. (1960) 183 Cal.App.2d 82, the administrative scheme had no "provision as to just what a citizen must do" in order to pursue claims administratively. (Rosenfield, supra, 65 Cal.2d at p. 566.) In Martino v. Concord Community Hosp. Dist. (1965) 233 Cal.App.2d 51, the administrative scheme's regulations were " 'devoid of any mention of the procedure to be followed ....' " (Rosenfield, supra, at p. 567, italics added.) And Rosenfield itself involved a county charter that "does not so much as suggest that an individual aggrieved by illegal departmental action may invoke that power on his own behalf; it provides no procedural machinery which would enable him to do so ... [and] it is not even clear that the commission can correct an abuse which ... it may happen to uncover." (Rosenfield, supra, at p. 568, italics added.)

Thus, under Rosenfield, it would have been an insufficient remedial scheme if appellant's sole redress was to invoke the Board of Supervisor's...