Opinion
C081248
08-29-2017
TIMOTHY EDGMON, Plaintiff and Appellant, v. DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2015-00177221-CU-MC-GDS)
Defendant Department of Forestry and Fire Protection (the Department) dismissed plaintiff Timothy Edgmon for misconduct while on duty on the basis of an investigation that the California Highway Patrol (CHP) conducted on the Department's behalf. Edgmon sought review of the Department's action with the State Personnel Board (SPB). While the SPB proceedings were underway, Edgmon brought the present collateral action in which he claimed two interviews that the CHP conducted of him were in violation of three provisions of the Firefighters Procedural Bill of Rights Act (FBOR) (Gov. Code, § 3250 et seq.). He thereafter filed a motion for a preliminary injunction in this collateral action—in effect, a motion in limine—to preclude the admission of his statements to the CHP in the proceedings on his pending administrative appeal to SPB of his dismissal (as well as a request to set aside his dismissal).
CHP, a defendant in the underlying action, does not appear to be an aggrieved party, therefore, we refer to the Department as the sole defendant in this appeal.
Undesignated statutory references are to the Government Code.
Foreseeing a "conga line of lawyers in administrative disciplinary actions coming [to the trial court's law and motion department] asking . . . for evidentiary rulings," and questioning why it was being called on to address an issue that should be for an SPB hearing officer who could come to a contrary conclusion, the trial court concluded that it would be acting in excess of its jurisdiction to grant the motion because it was an attempt to usurp the administrative jurisdiction of the SPB in pending proceedings before a final decision. The trial court also concluded arguendo that Edgmon was not likely to prevail on the merits, for which reason it did not address the relative interim harm to the parties (beyond noting the harm to the public interest in issuing an injunction against public agencies). Edgmon filed his notice of appeal in January 2016. Preparation of the record and briefing were complete in March 2017.
Edgmon contends "the only issue of which [he] seeks review" is whether the trial court erred in deciding in effect that it could not reach the issue of a FBOR violation before administrative review of that issue was exhausted. He nonetheless goes on to argue that the trial court was incorrect in concluding that he was unlikely to prevail. The Department primarily asserts that the trial court did not abuse its discretion in finding it unlikely that Edgmon would prevail (including a claim that FBOR is not even implicated on the facts of this case), before asserting that the trial court properly exercised its discretion to exercise judicial abstention in this matter.
Edgmon is correct that the trial court erred in couching its ruling in terms of a lack of jurisdiction over an issue in a pending administrative procedure. We decline to rule on whether this error was harmless in light of the trial court's dictum regarding the merits of Edgmon's motion for a preliminary injunction. Although the Department is correct that the trial court had discretion to abstain from ruling in this matter, the Department did not request the court at any point explicitly to exercise this discretionary power (beyond an aside at the hearing that "[i]f the SPB gets it wrong, [Edgmon] can appeal [sic] and have [the issue] reconsidered. So there is really no reason that the Court needs to do it at this juncture and take that power . . . away from the [hearing officer] or SPB"). It is not for this court on appeal to rule in the first instance on a matter within a trial court's discretion. (City of Pasadena v. Cohen (2014) 228 Cal.App.4th 1461, 1467-1468 & fn. 10.) Given that the trial court's concerns, voiced in connection with its belief in its lack of jurisdiction, are appropriate for a decision to abstain from ruling, we will remand to allow the trial court to render its decision on that basis if it chooses to exercise discretion in that fashion. We will accordingly reverse and remand with this direction.
FACTUAL AND PROCEDURAL BACKGROUND
Given our disposition, we have little to add to the introduction. The parties do not suggest the trial court improperly summarized the pertinent underlying facts, which we draw primarily from its ruling on the motion for a preliminary injunction.
We also grant in part the requests for judicial notice that the parties have filed with respect to the SPB administrative record: exhibits A and B of Edgmon's motion and exhibits A, B, C and D of the Department's motion. We decline to take judicial notice of the remainder of the exhibits involving legislative history, as they are not relevant to our resolution of this appeal.
The Department hired Edgmon as a firefighter in 2009. It promoted him to the position of engineer in March 2014. As a condition of his promotion, the Department required Edgmon to pass a six-week training course at the academy in Ione.
Edgmon was aware that the Department prohibited the on-duty consumption of alcohol or sexual misconduct. Nevertheless, he attended an academy graduation party in April 2014 at a local bowling alley in Sutter Creek while on stand-by duty, at which he admittedly consumed multiple alcoholic drinks. He also admittedly made unwanted sexual advances toward a female member of the public that allegedly culminated with a display of his genitalia when she tried to leave. Although local authorities questioned Edgmon about the incident, they did not charge him with any crime.
The CHP interrogated Edgmon in June 2014. Although advised it was his right, Edgmon did not bring a representative. In the interrogation, Edgmon admitted having multiple alcoholic drinks while on duty, but denied ever exposing his genitalia. The CHP conducted a second interrogation in September 2014. Edgmon appeared with representation. Though he had signed an acknowledgment of receiving a copy of an audio recording of his first interrogation, at the second interrogation Edgmon asserted that he had not in fact received it. The CHP offered to continue the interrogation until he and his representative could review the recording; both agreed to proceed without it.
The Department dismissed Edgmon in January 2015 on various grounds. Edgmon appealed his dismissal to the SPB in February 2015, a hearing on which was pending for February 2016. In the meantime, he brought the present action in August 2015.
At the hearing on his motion for a preliminary injunction, Edgmon frankly admitted that the present proceedings constituted a permissible second bite at the apple on the issue of a FBOR violation. As noted, the trial court found it would be an act in excess of its jurisdiction to rule on the admissibility of evidence in pending administrative proceedings, which would result in a flood of cases for the judicial branch. At the same time, it concluded that FBOR was more limited than the analogous statutes governing peace officers (Public Safety Officers Procedural Bill of Rights Act (POBOR) (§ 3300 et seq.)) and therefore the conduct at issue did not come within FBOR, and Edgmon otherwise was unlikely to prevail on the merits.
Following the trial court's ruling and Edgmon's notice of appeal, in May 2016 the SPB adopted the April 2016 proposed decision of its hearing officer. Among the issues the hearing officer considered and rejected was Edgmon's claim of a violation of FBOR (after the SPB found it applicable). In August 2016, Edgmon sought writ review of the SPB decision in San Francisco County Superior Court case No. CPF-16-515197. That court issued a stay of proceedings in October 2016 pending the finality of the present matter pursuant to the policy doctrine of exclusive concurrent jurisdiction. (County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83, 89.)
DISCUSSION
In Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, we determined that section 3309.5 of POBOR, which vests the superior courts with " 'initial jurisdiction over any proceeding brought by any public safety officer against any public safety department for alleged violations of this chapter,' " did not vest exclusive jurisdiction in superior courts (Alameida, at pp. 53-54, 60); "[o]nce punitive action is taken, the employee can assert [a] violation of [POBOR] as a defense to discipline in the administrative proceedings, or can seek an adjudication in court" (id. at p. 54, italics added). This followed (id. at pp. 54-55) from the earlier ruling in Mounger v. Gates (1987) 193 Cal.App.3d 1248, which held that section 3309.5 was intended to abrogate the doctrine of exhaustion of administrative remedies for violations of POBOR in seeking judicial relief (Mounger, at p. 1256 [statute was "specifically designed to allow an officer to pursue a remedy immediately in the courts for [a] violation of [POBOR] during [an] investigation and not be required to wait for judicial review after administrative consideration of [a] violation[]"]). As section 3260 (of FBOR) has a nearly identical provision, the same principle applies by analogy. (Compare § 3309.5, subd. (c) [POBOR] with § 3260, subd. (b) [FBOR].) The trial court was therefore incorrect in premising its ruling on a concept of acting in excess of its jurisdiction.
The venerable doctrine of equitable abstention is applicable in mandamus actions generally and in actions seeking injunctive relief in particular. (Acosta v. Brown (2013) 213 Cal.App.4th 234, 249, 261 [for better or worse "judicial abstention now seems as lodged in the jurisprudence of this state as it [has been] in federal [courts]" for over 75 years] (Acosta); Alvarado v. Selma Convalescent Hospital (2007) 153 Cal.App.4th 1292, 1297.) Equitable abstention allows a trial court in its case-specific discretion to refuse to exercise jurisdiction where an administrative or federal forum has concurrent jurisdiction over a dispute, whether for reasons of the complexity of an issue being better suited for the forum with greater expertise, or simply the interference with the functioning of an administrative agency, or the burden on courts in adjudicating an issue that is just as effectively resolved in the other forum. (People ex. rel. Dept. of Transportation v. Naegele Outdoor Advertising Co. (1985) 38 Cal.3d 509, 523; Acosta, supra, 213 Cal.App.4th at pp. 246, 248, 251-254, 257, 258; Alvarado, supra, 153 Cal.App.4th at p. 1298; Diaz v. Kay-Dix Ranch (1970) 9 Cal.App.3d 588, 593, 599 [whatever legal theory underlies request for injunctive relief, court must consider "availability and advisability" of other sources of relief].)
Edgmon cites Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 496-502, as a basis for refusing to apply abstention in the present case. That court concluded the trial court had abused its discretion in abstaining on a healthcare issue because it presented only a general question of law in the interpretation of a contract and would not enmesh the trial court in ongoing administrative proceedings or an individualized complex determination of coverage. However, "even if . . . the facts [in particular cases] were identical to those here, and the courts in those cases . . . refused [to abstain], the reasonableness of the adjudications in those cases would not compel us to find unreasonable [a] decision . . . to abstain; the realm of reason is capacious enough to embrace [both outcomes]." (Acosta, supra, 213 Cal.App.4th at p. 258, italics added.) Thus, the trial court is not constrained as a matter of law from deciding to abstain.
Rather than determine whether the trial court's ruling on jurisdiction was harmless in light of its dictum regarding the lack of apparent merit to Edgmon's challenge to the admission of his CHP interrogations in the administrative proceedings (the propriety of which is now the subject of a parallel mandate proceeding in San Francisco), we prefer to funnel the trial court's entirely valid concerns (about courts becoming evidentiary gatekeepers for administrative proceedings) into the proper channel of equitable abstention, it being apparent that the trial court would likely exercise its discretion to abstain. We will thus remand to allow the trial court to exercise its discretion on this issue in the first instance.
DISPOSITION
The parties' requests for judicial notice are granted in part as described more fully in the opinion. (See fn. 3, ante, at pp. 3-4.) The order denying Edgmon's motion for a preliminary injunction is vacated and remanded for the trial court to consider whether to exercise its discretion to abstain from exercising its jurisdiction in this matter. Neither party shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
BUTZ, Acting P. J. We concur: MURRAY, J. HOCH, J.