Judge Joan Lewis
San Diego Superior Court
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The following case is reminiscent of the Dr. Robert Pedowitz case at UCLA. UCLA
settled with Dr. Pedowitz for $10 million.
Certified for publication 2/11/08
COURT OF APPEAL,
FOURTH APPELLATE DISTRICT, DIVISION ONE
STATE OF CALIFORNIA
Plaintiff and Appellant,
REGENTS OF THE UNIVERSITY OF CALIFORNIA et al.,
Defendants and Respondents.
D049350 [Click HERE to see copy with footnotes.]
(Super. Ct. No. GIC848844)
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Reversed in part and affirmed in part.
Larry Brand appeals from a judgment entered after the trial court sustained the
demurrer of defendants the Regents of the University of California (the Regents), Alan
Paau, John Woods, Eduardo Macagno, Michael Melman and Daniel Wyman
(collectively, defendants) to Brand's lawsuit. The lawsuit alleged that defendants
unlawfully retaliated against him for making disclosures protected by the California
Whistleblower Protection Act (Gov. Code, § 8547 et seq.).
We conclude that except with respect to the third cause of action against Melman
(and the second cause of action, which is not at issue in this appeal), the trial court
erred in sustaining the demurer. Accordingly, we reverse the judgment in part.
I FACTUAL AND PROCEDURAL BACKGROUND
A. Brand's Whistleblowing Activity and Complaints of Retaliation
According to the operative second amended complaint in this action (the complaint),
Brand was employed by the Regents as a senior licensing officer in the Technology
Transfer and Intellectual Property Service office (TTIPS) at the campus of the University
of California, San Diego (UCSD). Brand alleges that he discovered "serious and
unlawful fraud and misappropriation of funds," self-dealing and other conflicts
of interest involving his supervisor, Paau, and then, beginning in March 2001,
he "made a number of internal reports aimed at alerting UC management to
the state of affairs." According to Brand, his disclosures became known to
Paau, who, along with Woods, Melman, Wyman and Macagno, retaliated against
[*3 According to the complaint, Woods, Melman, Wyman and Macagno are all
employees of the Regents. The complaint does not fully explain their employment
positions, but from information in the record it appears that during the relevant time
frame (1) Woods was the UCSD Vice Chancellor, Resource Management; (2) Melman
was the UCSD Director, Labor Relations; (3) Wyman was a Labor Advocate, Human
Resources Labor Relations at UCSD; and (4) Macagno was a dean in UCSD's Biology
Brand claims that the retaliation included withholding salary increases, giving him
unjustified negative performance reviews, maintaining a hostile work environment,
taking work away from him, threatening him with termination, and ultimately terminating
him in June 2003.
In response to the perceived retaliation, Brand filed several internal written
complaints with UCSD's locally designated officer (LDO) under the University of
California Policy for Protection of Whistleblowers from Retaliation and Guidelines for
Reviewing Retaliation Complaints (UC Whistleblower Protection Policy). In each of his
internal complaints, Brand complained that he was retaliated against in violation of the
California Whistleblower Protection Act (§ 8547 et seq.).
Brand's first internal complaints were filed on September 18 and September 22,
2002 (the September 2002 grievances) and focused on unsatisfactory performance
evaluations, the loss of a salary increase and pressure to offer his resignation. The
September 2002 grievances were addressed through a two-step internal process
premised on the procedures set forth in the UC Whistleblower Protection Policy and
policy 70 of the University of California's Personnel Policy for Staff Members (PPSM
70). At the first step of the procedure, Vice Chancellor Woods responded with a
written denial on October 30, 2002. At the second step, in response to Brand's
request, a factfinding meeting was held in February 2003. In April 2003, the fact finder
issued a report. The fact finder's report was submitted to Rogers Davis, the Assistant
Vice Chancellor for Human Resources, who relied on the report to formally deny the
September 2002 grievances. Brand asserts, and defendants do not contest, that
because of the senior professional classification to which Brand belonged, he was not
entitled under the applicable policy to appeal to a third step of the review process.
Thus, Davis's decision became the final administrative response to the September 2002
On October 11, 2002, shortly after he filed the September 2002 grievances, Brand
filed another internal complaint, alleging that in late September 2002 he was retaliated
against by being relocated to a different office and removed from a particular
assignment (the October 2002 grievance). The October 2002 grievance specifically
mentioned conduct by Paau, Macagno, Melman and Woods. According to Brand,
Woods rejected the October 2002 grievance at step 1 of the review process, and Brand
thereafter filed a request for a step 2 review on November 25, 2002. Neither the fact
finder's April 2003 report on the September 2002 grievances nor Assistant Vice
Chancellor Davis's May 2003 denial of the September 2002 grievances addressed the
October 2002 grievance.
Before the October 2002 grievance was resolved, Brand filed internal complaints on
June 19 and June 30, 2003 (the June 2003 grievances). The June 2003 grievances
alleged that additional acts of retaliation occurred after the October 2002 grievance
and that Brand was eventually terminated in retaliation for being a whistleblower. Vice
Chancellor Woods denied the June 2003 grievances on July 21, 2003, in step 1 of the
applicable two step review process. On August 1, 2003, exercising his right to proceed
to step 2 of the review process, Brand filed a written appeal requesting that a
factfinding proceeding be conducted.
Barbara Stewart, a management services officer in the UCSD Department of
Sociology, held a factfinding meeting on September 29, 2003. Brand attended the
meeting, representing himself. Paau and Wyman represented the TTIPS office. The
factfinding meeting, as described in Stewart's report, consisted of Stewart reading an
opening statement to the parties, and Brand and the TTIPS office orally stating their
positions and submitting certain documentary evidence. Stewart's factfinding report
makes clear that she communicated with certain relevant witnesses outside of the
September 29, 2003 factfinding meeting, and she considered information gathered from
those witnesses in reaching her findings.
Following the September 29, 2003 factfinding meeting, Stewart did not issue her
factfinding report until more than seven months later, on May 11, 2004. The report
expressly addressed the June 2003 grievances. Further, although the report did not
specifically acknowledge the existence of Brand's October 2002 grievance or state that
it was addressing that grievance, the text of the report discusses the facts put at issue
in the October 2002 grievance.
On July 6, 2004, Assistant Vice Chancellor Davis issued a final decision denying the
October 2002 grievance and the June 2003 grievances, relying on Stewart's May 11,
2004 factfinding report and on documentary evidence. Davis stated that he found "no
evidence to convince me that the decision . . . to terminate Dr. Brand's employment was
linked to a protected disclosure by Dr. Brand" and that he found "no nexus between Dr.
Brand's protected disclosures and other decisions made impacting him in the
workplace." Because Brand was not entitled to appeal to a third step of the review
process, Davis's decision became the final administrative action on the October 2002
grievance and the June 2003 grievances.
B. Brand's Lawsuit and Defendants' Demurrer
Brand filed this lawsuit in June 2005. The operative complaint alleges three causes
of action and seeks compensatory and punitive damages as well as reinstatement of
Brand to his former position. The first cause of action alleges that all of the defendants
unlawfully retaliated against Brand in violation of section 8547.10, which prohibits
retaliation against University of California employees who make protected disclosures.
The second cause of action alleges that the Regents violated Labor Code section
1102.5. The third cause of action alleges that all of the defendants, except the
Regents, violated section 8547.11, which prohibits interference with an employee's
attempt to make a protected disclosure.
Defendants filed a demurrer to the complaint, asserting several arguments. The first
argument centered on the text of section 8547.10, subdivision (c), which limits the
circumstances in which a party may bring a suit for damages under section 8547.10.
That subdivision states:
"In addition to all other penalties provided by law, any person who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or similar acts
against a university employee . . . having made a protected disclosure shall be
liable in an action for damages brought against him or her by the injured party.
. . . However, any action for damages shall not be available to the injured party
unless the injured party has first filed a complaint with the [designated
university officer], and the university has failed to reach a decision regarding
that complaint within the time limits established for that purpose by
the regents." (§ 8547.10, subd. (c), italics added.)
Focusing on the portion of the statute italicized above, the complaint alleged that an
action for damages was authorized because neither the October 2002 grievance nor
the June 2003 grievances were resolved "within the time limits established for that
purpose by the regents," which according to the complaint comprised a total time limit of
156 days. However, in their demurrer defendants argued that the complaint's allegation
of untimeliness was defective. Pointing out that the complaint attached three different
complaint resolution policies as exhibits, defendants argued that at least one of the
policies attached to the complaint (UCOP Procedure 70) was not applicable according
to Brand's own admission in an earlier motion. Defendants also argued that one of the
other policies attached to the complaint (the UCSD local procedures for implementing
PPSM 70) did not set any time limit for the factfinding process. Defendants, however,
did not attack the applicability of the time limits set forth in the third document attached
to the complaint — the UC Whistleblower Protection Policy.
Second, defendants argued that the demurrer should be granted as to all of the
causes of action because Brand had failed to exhaust his judicial remedies by filing an
action for damages without first challenging the Regents' decision through a writ of
Third, defendants argued that because certain conduct that Brand objected to in the
complaint was admittedly not the subject of his internal grievances, Brand had not
exhausted his administrative remedies as to those issues.
Fourth, defendants argued that any posttermination conduct complained of by
Brand was not covered by sections 8547.10, 8547.11 or Labor Code section 1102.5.
Finally, defendants argued that the allegations against the individual defendants
were barred by the privilege set forth in Civil Code section 47, subdivision (b), or
alternatively that the individual defendants were entitled to absolute governmental
immunity under section 821.6.
C. The Trial Court's Ruling
The trial court sustained the demurrer as to all three of Brand's causes of action.
First, the trial court concluded that Brand's claims for violation of sections 8547.10 and
8547.11 were barred by section 8547.10, subdivision (c).
The trial court interpreted that provision to mean that an action
for damages is barred whenever the Regents have reached a
decision on a grievance, even if the decision is not timely.
Citing section 8547.10, subdivision (c) and Campbell v. Regents of University of
California (2005) 35 Cal.4th 311, 327 (Campbell), the trial court stated, "The Court
believes the pertinent fact in this case to be that the Regents, whether timely or not,
reached a decision on Plaintiff's grievances prior to this action being filed. Therefore,
an action for damages is not available. [B]ecause the Regents issued a decision —
even if late — before the filing of this action, Plaintiffs' claims for violation of [sections]
8547.10 and 8547.11 are barred by [section] 8547.10[, subdivision ](c)."
Second, although the trial court's reasoning could be more clear, its appears that in
addition to relying on its interpretation of section 8547.10, subdivision (c), the trial
court also sustained the demurrer for the independent reason
that it believed Brand was required, under the doctrine of
judicial exhaustion, to successfully challenge the Regents'
denial of his grievances through a writ of mandate before he
would be able to bring a lawsuit for damages.
Third, the trial court also accepted defendants' arguments that posttermination
conduct could not support any of the statutory claims asserted in the complaint, and
that Brand's complaint was barred with respect to those issues on which he had not
exhausted his administrative remedies.
The trial court specifically found it unnecessary to rule on the contention of the
individual defendants that the claims against them are barred by privilege or that they
are protected by governmental immunity.
D. Brand's Appeal
Brand appeals from the judgment. He limits his appeal to challenging the trial court's
ruling regarding the first and third causes of action (i.e., for violation of section 8547.10
by all defendants, and section 8547.11 by the individual defendants). Brand first
argues that the trial court erred in ruling that a plaintiff may not bring a damages suit
under section 8547.10, subdivision (c) after the Regents have reached a decision on
an internal grievance, even when that decision was untimely. Second, Brand argues
that the trial court erred in ruling that he was required, under the doctrine of judicial
exhaustion, to successfully challenge the Regents' denial of his grievances through a
writ of mandate before being permitted to bring a damages action. Third, Brand argues
that the trial court erred in ruling that his third cause of action against the individual
defendants under section 8547.11 was barred to the extent that he did not exhaust his
A. 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.' " (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.
App.4th 629, 650.) 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."
(Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.)
Further, to the extent that the issue before us is one of statutory interpretation, we
review this question of law de novo. (Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.
App.4th 68, 76-77.)
B. Did the Trial Court Err in Concluding that Brand's Suit for Damages Under
Section 8547.10, Subdivision (c) Was Barred Under the Terms of that Statute Even If
the Regents' Decision Was Untimely?
We first consider Brand's argument that the trial court erred in ruling that a plaintiff
may not bring a damages suit under section 8547.10, subdivision (c) after the Regents
reach a decision on an internal grievance, even when that decision was untimely.
We approach the analysis of the issue in two separate steps. First, premised on the
allegations in the complaint and the documents of which the trial court took judicial
notice, we inquire whether Brand has a viable claim that the Regents' decision on the
October 2002 grievance and the June 2003 grievances was untimely. Second, if we
determine that Brand does have a viable claim that the decision was untimely, we will
proceed to analyze whether the trial court erred in interpreting section 8547.10,
subdivision (c) to mean that a plaintiff may not bring a damages suit under that
provision after the Regents have decided an internal grievance, even if the Regents'
decision was untimely.
1. Brand Has a Viable Claim that the Regents' Decision Was Untimely
As we have explained, the complaint alleges that the Regents were required to
decide Brand's internal complaints of retaliation within 156 days from the time they were
assigned to the fact finder. As we also have explained, the complaint attaches the
three complaint resolution policies from which it purports to derive this 156 day
deadline. Defendants take issue with Brand's claim that a 156 day deadline applies,
and they submit a fourth complaint resolution policy (i.e., PPSM 70), which they claim
has some relevance in determining the applicable deadline.
The trial court did not attempt to determine whether the complaint's allegation of a
156 day deadline is supported by the judicially noticed documents and the documents
attached to the complaint, nor did it attempt to determine which of the complaint
resolution policies cited by the parties were, in fact, applicable. Similarly, we do not
undertake to determine the correctness of Brand's allegation of a 156 day deadline or
to determine whether some of the complaint resolution policies discussed by the parties
are inapplicable. Instead, for the purposes of our analysis, we find it sufficient to rely on
the deadline set forth in one of the documents that all the parties appear to agree
applies here: the UC Whistleblower Protection Policy.
The UC Whistleblower Protection Policy provides that "[w]hen an employee files a
complaint which contains an eligible allegation of retaliation under an existing University
grievance or complaint resolution procedure" and, as here, "the complaint is filed under
a complaint resolution procedure containing factfinding as specified in University
policies as part of the final available step . . . , the RCO will serve as the factfinder."
The policy provides that "[t]he RCO shall present findings of fact based on the evidence
and factual conclusions to the Chancellor within 120 days from the date on which the
complaint was assigned to the RCO unless an extension is granted by the LDO."
Defendants attempt to dispute the mandatory nature of the 120 day deadline for the
RCO to present findings of fact to the Chancellor. First, they point out that the UC
Whistleblower Protection Policy provides that if a complaint is filed under an applicable
grievance or complaint resolution process instead of directly with the LDO, "the LDO will
hold the retaliation complaint in abeyance until all of the steps preceding hearing,
arbitration, or factfinding have been completed." (Italics added.) However, because the
cited policy provision deals with holding a complaint in abeyance preceding the initiation
of the RCO's factfinding procedures, it plainly does not extend the 120 day deadline for
the RCO to present findings of fact. Second, defendants point out that under the policy
the Chancellor may "remand the findings to the RCO if further investigation is needed
before making a decision." This provision, too, has no impact on the 120 day deadline,
because it does not impact the timeline under which the RCO initially must present a
factfinding report to the Chancellor.
The UC Whistleblower Protection Policy, which contains the 120 day deadline, states
that it is "derived from the California Whistleblower Protection Act." The 120 day
deadline thus appears to fit the definition of one of the "time limits established for that
purpose [i.e., reaching a decision on an internal complaint of retaliation for making a
protected disclosure] by the regents" as set forth in section 8547.10, subdivision (c).
We accordingly conclude that the UC Whistleblower Protection Policy's 120 day
deadline for the RCO to present findings of fact to the Chancellor, is one of the "time
limits established . . . by the regents" referred to in section 8547.10, subdivision (c).
Here, Brand's complaint alleges that the June 2003 grievances were assigned to the
RCO on approximately August 1, 2003. He does not allege the date on which the
October 2002 grievance was assigned to the RCO. However, it is clear from the
judicially noticed documents that the factfinding meeting regarding these grievances
took place on September 29, 2003. Thus, the relevant complaints were assigned to
the RCO (i.e., Stewart) no later than September 29, 2003, when Stewart conducted the
factfinding meeting. However, Stewart did not issue her report or present it to the
Chancellor until at least May 11, 2004, which is 225 days after the factfinding meeting.
Because the judicially noticed documents establish that Stewart failed to
present a factfinding report to the Chancellor within 120 days of the date the
complaint was assigned to her, Brand appears to have a viable claim that the
Regents failed to reach a decision within the applicable time limits.
2. Section 8547.10, Subdivision (c) Permits a Suit for Damages, Even If the
Regents Have Reached a Final Decision on an Internal Complaint, As Long As the
Decision Is Not Timely
Having concluded that Brand has a viable claim that the Regents failed to reach a
timely decision on the October 2002 grievance and the June 2003 grievances, the next
issue is whether, because of that untimely decision, Brand is permitted to bring a suit
for damages pursuant to section 8547.10, subdivision (c).
Brand interprets section 8547.10, subdivision (c) to mean that because he pursued
an internal administrative complaint and the Regents did not make a timely decision on
the internal complaint, he was permitted to file a suit seeking damages. The trial court,
on the other hand, read section 8547.10, subdivision (c) to mean that a damages suit is
barred as long as the Regents reached a decision on the internal complaint, even if the
decision was not timely. On appeal, defendants urge us to adopt the trial court's
interpretation. As we will explain, we agree with Brand, and we reject the trial court's
reading of the statute.
Our analysis of section 8547.10, subdivision (c) begins with the plain language of
the statute, and if that language is unambiguous, our analysis ends there. "As with any
statutory construction inquiry, we must look first to the language of the statute. 'To
determine legislative intent, a court begins with the words of the statute, because they
generally provide the most reliable indicator of legislative intent.' [Citation.] If it is clear
and unambiguous our inquiry ends. There is no need for judicial construction and a
court may not indulge in it. [Citation.] 'If there is no ambiguity in the language, we
presume the Legislature meant what it said and the plain meaning of the statute
governs.' " Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th
1036, 1047 (Diamond Multimedia).)
Directing our attention to the language of section 8547.10, subdivision (c), the
meaning appears clear and unambiguous.
"In addition to all other penalties provided by law, any person who intentionally engages
in acts of reprisal, retaliation, threats, coercion, or similar acts against a university
employee . . . having made a protected disclosure shall be liable in an action for
damages brought against him or her by the injured party. . . . However, any action for
damages shall not be available to the injured party unless the injured party has first
filed a complaint with the [designated university officer], and the university has failed to
reach a decision regarding that complaint within the time limits established for that
purpose by the regents." (§ 8547.10, subd. (c), italics added.)
The final sentence plainly states that to bring a suit for damages, two prerequisites
must have occurred. First, the plaintiff must have properly filed an internal complaint.
Second, the university must have failed to reach a decision within the time limits
established by the Regents. If these two prerequisites are met, a plaintiff may file a suit
If we were to read the statute, as the trial court did, to mean that a damages suit is
disallowed whenever the university reaches a decision on the internal complaint, even if
the decision is not timely, we would be required to disregard a portion of the statutory
language. Specifically, we would be required to disregard the phrase — "within the time
limits established for that purpose by the regents." We may not adopt an interpretation
of a statute that ignores a portion of the statutory language. " 'In analyzing statutory
language, we seek to give meaning to every word and phrase in the statute to
accomplish a result consistent with the legislative purpose . . . .' " (California Teachers
Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 634, italics
added.) "[I]nterpretations which render any part of a statute superfluous are to be
avoided." (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1207.)
Instead of expressly relying on the statutory language for their interpretation of
section 8547.10, subdivision (c), both the trial court and defendants rely on dictum in
Campbell, supra, 35 Cal.4th 311, 327. Campbell considered whether University of
California employees are required to exhaust their administrative remedies before filing
suit for retaliatory termination under two specific " 'whistleblower' statutes" — section
12653, subdivision (c) and Labor Code section 1102.5. (Campbell, at p. 317.) In the
course of considering whether an employee is required to exhaust administrative
remedies before filing suit under section 12653, subdivision (c), Campbell addressed
the appellant's argument that because section 8547.10, subdivision (c) contained an
explicit administrative exhaustion requirement, but section 12653, subdivision (c) did
not, the court should not read an administrative exhaustion requirement into section
12653, subdivision (c) when the legislature failed to include one. (Campbell, at p.
327.) Campbell included a short paragraph describing the administrative
exhaustion requirement that is set forth in section 8547.10, subdivision (c).
"[T]he statute permits aggrieved university employees to file a damages action provided
they have followed the administrative procedures and filed an administrative complaint
before filing their lawsuit. (§ 8547.10, subd. (a).) Of note here, the employee may not
proceed with a court action against the university unless that institution has failed to
reach an administrative decision on the action within specified time limits. (§ 8547.10,
subd. (c).) In such a case, the employee may file a lawsuit for damages even though
the administrative complaint is pending. If, by contrast, the university has reached a
decision on the administrative action, the statute does not authorize any statutory
damages action." (Campbell, supra, 35 Cal.4th at p. 327.)
Defendants argue that we should rely on the wording in the last sentence of this
paragraph to conclude that our Supreme Court has interpreted section 8547.10,
subdivision (c) to mean that "if . . . the university has reached a decision on the
administrative action, the statute does not authorize any statutory damages action."
(Campbell, supra, 35 Cal.4th at p. 327.) They urge that we follow this interpretation
without regard to the actual statutory language, which refers to the preclusive effect of
a timely decision by the university, not the preclusive effect of any decision by the
university. As we will explain, we reject defendants' attempt to rewrite the clear statutory
language of section 8547.10, subdivision (c) by focusing on a single sentence of dictum
Read as a whole, the relevant paragraph in Campbell sets forth an interpretation of
section 8547.10, subdivision (c) that is consistent with the clear statutory language.
Indeed, the second sentence of the paragraph accurately reflects the plain meaning of
the statute, as it states that "the employee may not proceed with a court action against
the university unless that institution has failed to reach an administrative decision on
the action within specified time limits." (Campbell, supra, 35 Cal.4th at p. 327, italics
added). In what appears to be inexact drafting, the final sentence of the paragraph
restates this concept in the negative and, perhaps inadvertently, drops the timeliness
qualifier. However, in light of the accurate description of section 8547.10, subdivision
(c) earlier in the paragraph, which unambiguously includes the concept of timeliness,
we do not read Campbell to be communicating, through dictum, an intention to rewrite
the clear language of the statute to state that a plaintiff may not bring a damages suit
following the university's decision on an internal complaint, even when that decision was
Accordingly, we conclude that the clear and unambiguous language of section
8547.10, subdivision (c) allows Brand to proceed with his suit for damages because he
has pled a viable claim that the Regents failed to reach a timely decision on the
October 2002 grievance and the June 2003 grievances.
C. The Doctrine of Judicial Exhaustion Does Not Apply
We next consider whether the trial court erred in concluding that the doctrine of
judicial exhaustion required Brand to successfully challenge the Regents' decision on
the October 2002 grievance and the June 2003 grievances through a writ of mandate
before he was permitted to bring a suit for damages.
The doctrine of judicial exhaustion is premised on the concept of collateral estoppel.
"The underpinnings of this rule of exhaustion of judicial remedies . . . are buried in the
doctrine of res judicata or that portion of it known as collateral estoppel . . . ."
(Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 241.) Thus, "while
administrative exhaustion is a fundamental rule of procedure," "[j]udicial exhaustion is a
species of res judicata." (Ibid.) Under the doctrine of judicial exhaustion, "collateral
estoppel bars the religating of issues which were previously resolved in an
administrative hearing by an agency acting in a judicial capacity." (Id. at p. 242.)
"Unless the administrative decision is challenged, it binds the parties on the issues
litigated and if those issues are fatal to a civil suit, the plaintiff cannot state a viable
cause of action." (Id. at p. 243.)
As our Supreme Court has explained, "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."
(Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70.) Pursuing a mandate
action is referred to in this context as "[e]xhaustion of judicial remedies" and "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.' " (Id. at p. 70,
However, not all administrative proceedings give rise to collateral estoppel.
"Collateral estoppel may be applied to decisions made by administrative agencies '[w]
hen an administrative agency is acting in a judicial capacity and resolves disputed
issues of fact properly before it which the parties have had an adequate opportunity to
litigate . . . .' " (People v. Sims (1982) 32 Cal.3d 468, 479 (Sims), quoting United States
v. Utah Constr. Co. (1966) 384 U.S. 394, 422.) When the proceeding lacks a quasi-
judicial quality, collateral estoppel does not arise. (See Westlake Community Hosp. v.
Superior Court (1976) 17 Cal.3d 465, 478.) Thus, as our Supreme Court has
explained, "For an administrative decision to have collateral estoppel effect, it and its
prior proceedings must possess a judicial character. . . . Indicia of proceedings
undertaken in a judicial capacity include a hearing before an impartial decision maker;
testimony given under oath or affirmation; a party's ability to subpoena, call, examine,
and cross-examine witnesses, to introduce documentary evidence, and to make oral
and written argument; the taking of a record of the proceeding; and a written statement
of reasons for the decision." (Pacific Lumber Co. v. State Water Resources Control Bd.
(2006) 37 Cal.4th 921, 944 (Pacific Lumber), citation omitted.)
Here, the description of the proceedings set forth in Stewart's factfinding report
shows that the factfinding procedure did not have a judicial character. Specifically, a
hearing was not held, testimony was not given under oath, the parties were not able to
subpoena, call, examine, or cross-examine witnesses, and there is no indication that a
record of the proceedings was created. Instead, Stewart appears to have conducted
an investigation, consistent with step 2 in PPSM 70, in which she interviewed witnesses
outside of the presence of the parties, and relied on those interviews, along with
documentary evidence and oral statements submitted by the parties to reach a
decision. Such a procedure is not sufficient to give rise to collateral estoppel. (See
Pacific Lumber, supra, 37 Cal.4th at p. 944 [collateral estoppel was not created when
the parties were not given the opportunity to call and cross-examine witnesses during
the administrative proceeding].)
We accordingly conclude that because collateral estoppel did not arise from the
Regents' decision denying the October 2002 grievance and the June 2003 grievances,
Brand was not required to challenge those decisions through a writ of mandate prior to
adjudicating a suit for damages.
D. Brand Was Required to Exhaust Administrative Remedies with Respect to
His Allegations Under Section 8547.11
Brand argues that the trial court erred in ruling that he was required to exhaust his
administrative remedies with respect to certain of his claims against the individual
defendants in the third cause of action brought pursuant to section 8547.11. Brand
contends that because there is no statement in section 8547.11 requiring that a plaintiff
first exhaust administrative remedies, he was not required to do so.
As a preliminary matter, we note that the trial court's ruling is not particularly clear
about the role that the concept of failure to exhaust administrative remedies played in
its decision to sustain the demurrer to the third cause of action. On that issue, the trial
court made the following statements. First, it stated, "As to the contention that certain
conduct occurring while [Brand] was employed by the University was not discovered
until after [Brand]'s termination, the Court finds such claims are barred for [Brand]'s
failure to pursue and exhaust his administrative remedies." Second, summarizing its
ruling the court stated, among other things, that "all three causes of action are barred
for failure to exhaust administrative and/or judicial remedies." Reading the trial court's
ruling as a whole, however, the order sustaining the demurrer to the third cause of
action appears to have been based primarily on the decision that Brand had failed to
exhaust his judicial remedies and was therefore barred by collateral estoppel, not that
Brand failed to exhaust his administrative remedies.
Indeed, from our review of the record, it appears that the trial court could not have
properly cited Brand's failure to exhaust administrative remedies as a basis to sustain a
demurrer to the third cause of action. This is because there are clearly some
allegations within the third cause of action for which, according to the judicially noticed
documents, Brand did exhaust his administrative remedies when he included those
allegations in the September 2002 grievances, the October 2002 grievance, or the
June 2003 grievances. "A demurrer does not lie to a portion of a cause of action" (PH
II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682) and "must dispose of an
entire cause of action to be sustained." (Fremont Indemnity Co. v. Fremont General
Corp. (2007) 148 Cal.App.4th 97, 119.) Because the failure to exhaust administrative
remedies would not dispose of the entire cause of action, the trial court erred to the
extent that it sustained the third cause of action on that basis.
On remand, the proper vehicle by which defendants could challenge particular
allegations as being barred by failure to exhaust administrative remedies would include
a motion to strike those allegations from the complaint. (Code Civ. Proc., § 436.)
Because the issue is likely to arise on remand, we will discuss Brand's contention that
he was not required to exhaust his administrative remedies with respect to any portion
of his claims brought under section 8547.11. (Wachovia Bank v. Lifetime Industries,
Inc. (2006) 145 Cal.App.4th 1039, 1056 [addressing issue to provide guidance on
As our Supreme Court explained in Campbell, supra, 35 Cal.4th 311, "the rule of
exhaustion of administrative remedies is well established in California jurisprudence . . .
. 'In brief, the rule is that where an administrative remedy is provided by statute, relief
must be sought from the administrative body and this remedy exhausted before the
courts will act.' . . . The exhaustion rule extends to employees seeking judicial review
of an employer's administrative findings." (Id. at p. 321, citations & fn. omitted.)
Campbell further established that the administrative exhaustion requirement need not
be spelled out in the applicable statute under which the plaintiff is attempting to file a
lawsuit, but instead applies as a long-standing common law principle unless the
applicable statute provides otherwise. (Id. at p. 328 ["the Legislature's silence in the . .
. statute makes the common law exhaustion rule applicable here and requires
employees to exhaust their internal administrative remedies prior to filing a lawsuit"].)
"[A]bsent a clear indication of legislative intent, we should refrain from inferring a
statutory exemption from our settled rule requiring exhaustion of administrative
remedies." (Id. at p. 333.)
Thus, because the text of section 8547.11 reveals no evidence that the Legislature
intended to depart from the common law requirement of exhaustion of administrative
remedies, that requirement applies here, and Brand must first exhaust his
administrative remedies with respect to his claims asserted under section 8547.11.
As Campbell recognized, "the administrative remedies exhaustion rule has several
exceptions, including, but not limited to . . . (1) when the administrative agency cannot
provide an adequate remedy, and (2) when the subject of controversy lies outside the
agency's jurisdiction." (Campbell, supra, 35 Cal.4th at p. 322.) As we will explain,
neither of these exceptions apply here (and Brand does not identify any other possible
exceptions). Specifically, a claim under section 8547.11 focuses on an individual's
interference with the right of an employee to make protected disclosures. The UC
Whistleblower Protection Policy covers "complaints of . . . interference" filed by
employees, which is defined in the policy as "[d]irect or indirect use of authority to
obstruct an individual's rights to make a protected disclosure." Under the policy, the
chancellor "determines the appropriate corrective action, if any, which will be initiated
against a University employee who is found to have . . . interfered with an employee's . .
. right to make a protected disclosure." Thus, based on the UC Whistleblower
Protection Policy, the subject of Brand's claims appears to fall within the scope of the
Regent's jurisdiction, and the Regents are able to provide an adequate remedy.
We accordingly conclude that because the doctrine of administrative exhaustion
applies to Brand's claims brought under section 8547.11, Brand is barred from
asserting any allegations that he did not pursue in his internal complaints.
E. Additional Grounds for Demurrer Not Reached by the Trial Court
Defendants argue that the ruling on the demurrer to the third cause of action (i.e.,
the claim against the individual defendants for interference under § 8547.11) should be
affirmed on grounds not reached by the trial court. "A judgment of dismissal after a
demurrer has been sustained without leave to amend will be affirmed if proper on any
grounds stated in the demurrer, whether or not the court acted on that ground."
(Carman v. Alvord (1982) 31 Cal.3d 318, 324 (Carman).) Thus, we will consider the
additional grounds for the demurrer advanced below by defendants, but not ruled on by
the trial court, to determine whether they provide a basis for affirming the judgment of
As a preliminary matter, we note that defendants' appellate briefing urges us to
affirm the demurrer to the third cause of action based on several grounds not
presented to the trial court. Because our inquiry is whether there were any grounds
"stated in the demurrer" that could support the trial court's order sustaining the demurer
ruling, we do not consider those arguments. (Carman, supra, 31 Cal.3d at p. 324.)
The only additional grounds for demurrer to the third cause of action asserted in the
trial court, but not ruled on, were (1) that the allegations made in paragraph 56 of the
complaint were barred by the absolute privilege established by Civil Code section 47,
subdivision (b), which applies to communications made in the course of official
proceedings; and (2) that Melman has immunity under section 821.6 from allegations
that he delayed in initiating the investigation of the October 2002 grievance.
We now turn to an examination of these arguments.
1. Claim of Privilege Under Civil Code Section 47, Subdivision (b)
Civil Code section 47, subdivision (b) creates an absolute privilege for, among other
things, a "publication or broadcast" made "in any . . . official proceeding authorized by
law." "The term 'official proceeding' extends to investigatory activities by public
agencies." (Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 478.)
For example, statements made in the State Auditor's report into a whistleblower's
allegation of improper governmental activity were privileged statements made in an
"official proceeding." (Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382,
1388-1389.) "The privilege applies to any communication made in such proceedings by
a participant that has some connection or logical relation to the proceedings."
(Garamendi, at p. 478.) Thus, in this case, statements made in connection with the
official investigation into Brand's allegations concerning Paau's misconduct, or into
Brand's internal complaints that he was retaliated against for his protected disclosures,
would be covered by the privilege.
Defendants argued that the third cause of action is subject to demurrer because the
allegations supporting that cause of action, which are set forth in paragraph 56 of the
complaint, rely on statements protected by the privilege set forth Civil Code section 47,
subdivision (b). To analyze this argument, we will examine each of the items that
defendants contend is subject to the privilege.
Paragraph 56(a) of the complaint alleges that one day after Brand made a protected
disclosure about Paau's allegedly improper activities to a confidential whistleblower
hotline, Wyman, who allegedly had no role in investigating the hotline report, improperly
disclosed a transcript of the hotline report to Paau. The paragraph further alleges that
Paau and Wyman thereafter colluded to render a false performance evaluation of
Brand. Neither of these allegations seek to hold any defendant liable for a
communication made in connection with an official proceeding, and thus the privilege
set forth in Civil Code section 47, subdivision (b) does not apply.
Paragraph 56(b) of the complaint alleges that after Brand started a dialog with an
attorney in the University of California Office of the President regarding Paau's
allegedly improper activities, Paau interfered and stopped the dialog by accusing Brand
of insubordination, and later used this instance of purported insubordination to give
Brand a negative performance review. This allegation also does not seek to hold any
defendant liable for a communication made in connection with an official proceeding,
and thus also is not covered by the privilege set forth in Civil Code section 47,
Paragraph 56(c) of the complaint has multiple subparts describing various alleged
impermissible conduct. First, Brand alleges that Paau threatened to humiliate him if he
did not resign, and despite Brand's request, Woods did not take action to protect
Brand. Second, Brand alleges that Paau continued to obstruct Brand's performance of
his employment duties, involving Macagno in some of that obstruction; sought to falsify
Brand's employment records; and ultimately terminated Brand. Third, referring to
Stewart's May 2004 factfinding report, Brand alleges that Melman sought to discredit
Brand through the factfinding report allegedly issued by Melman's "organization," which
allegedly contained a "blatant disregard of the facts." Finally, Brand alleges that Paau
made untrue statements in his letter of intent to terminate Brand. We conclude that
only one of these allegations seeks to hold a defendant liable for a statement made in
connection with an official proceeding. Specifically, the statements made in Stewart's
May 2004 factfinding report, which Brand attempts to ascribe to Melman, were made in
the course of an official factfinding investigation by a participant in that investigation
and thus are covered by the privilege set forth in Civil Code section 47, subdivision (b).
2. Immunity Under Section 821.6
Paragraph 56(c)(8) of the complaint alleges that Melman improperly refused to
initiate the factfinding proceeding concerning the October 2002 grievance until
Defendants' demurrer argued that Melman has immunity for this conduct under
section 821.6, which states: "A public employee is not liable for injury caused by his
instituting or prosecuting any judicial or administrative proceeding within the scope of
his employment, even if he acts maliciously and without probable cause."
In opposition to the demurrer, Brand did not contend that section 821.6 was
inapplicable to an official's delay in instituting a factfinding proceeding. Indeed, we
note that the immunity afforded by section 821.6 is arguably broad enough to cover
Melman's alleged delay in instituting proceedings. " 'The immunity conferred by section
821.6 is not limited to peace officers and prosecutors but has been extended to public
school officials . . . , heads of administrative departments . . . , social workers . . . ,
county coroners . . . , and members of county boards of supervisors . . . .' " (Javor v.
Taggart (2002) 98 Cal.App.4th 795, 808 (Javor).) Further, "[s]ection 821.6 is not
limited to conduct occurring during formal proceedings. '[I]t also extends to actions
taken in preparation for formal proceedings. Because investigation is "an essential
step" toward the institution of formal proceedings, it "is also cloaked with immunity." ' "
(Ibid.) It is also relevant that " ' "[s]ection 821.6 is not limited to suits for damages for
malicious prosecution, although that is a principal use of the statute." ' " (Ibid.)
Instead of disputing the general applicability of section 821.6 to the situation
presented, Brand argued that Melman is not protected by immunity because he was not
acting within the scope of his employment as required by the plain language of the
statute. We reject this argument. The complaint alleges that Melman did not initiate the
investigation of the October 2002 grievance, although "the policy required him to do
so." (Italics added.) This is an implicit admission that institution of the investigation was
within Melman's official duties, and accordingly, that he was acting within the scope of
his employment in delaying the investigation. We thus conclude that Melman's delay in
instituting the factfinding proceeding was covered by the immunity set forth in section
Because the allegation in paragraphs 56(c)(8) and 56(c)(9) of the complaint are the
only allegations pertaining to Melman in the third cause of action, and we have
determined that both of those allegations fail (based on the privilege afforded by Civil
Code section 47, subdivision (b) and the immunity set forth in section 821.6,
respectively), we conclude that the third cause of action fails to state a claim against
Melman. We thus affirm the demurrer to the third cause of action only as to Melman.
Except for the trial court's ruling sustaining the demurrer to the third cause of action
against Melman and the ruling sustaining the demurrer to the second cause of action,
which Brand does not challenge on appeal, we reverse the judgment and remand for
proceedings consistent with this opinion. Each party to bear its own costs on appeal.
MCCONNELL, P. J.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
Plaintiff and Appellant,
REGENTS OF THE UNIVERSITY OF CALIFORNIA et al.,
Defendants and Respondents.
(Super. Ct. No. GIC848844)
ORDER CERTIFYING OPINION FOR PUBLICATION
The opinion filed January 18, 2008, is ordered certified for publication.
The attorneys of record are:
Joel C. Golden for Plaintiff and Appellant.
Littler Mendelson, John S. Adler and Lara K. Strauss for Defendants and
McCONNELL, P. J.
Copies to: All parties