Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CC07281, Randell L. Wilkinson, Judge.
Goldwasser & Glave and Corey W. Glave for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Michael E. Whitaker, James Ahern and Glenn L. Savard, Deputy Attorneys General, for Defendants and Respondents.
OPINION
IKOLA, J.
Plaintiff John Pierce appeals from a judgment entered in favor of defendants Gregory J. Kiesewetter, Doug Brenn, Michael S. Champion, the State of California, and the Department of Motor Vehicles (DMV). Plaintiff alleged defendants violated the Public Safety Officers Procedural Bill of Rights (POBRA) (Gov. Code, § 3300 et seq.), two Labor Code provisions, and his right to due process of law when the DMV terminated him from his position as an investigator. Defendants moved for summary judgment or summary adjudication. The court granted summary judgment to defendants.
All further statutory references are to the Government Code unless otherwise stated.
The court erred. Defendants did not show they were entitled to judgment as a matter of law on plaintiff’s first cause of action for POBRA violations. Triable issues of material fact exist as to whether defendants complied with POBRA’s requirements to notify plaintiff about the nature of the internal investigation, disclose certain investigation-related documents, abstain from retaliating against plaintiff, and allow plaintiff to review and respond to certain documents in his personnel files. Thus, the court should have denied summary adjudication as to the first cause of action. However, defendants are entitled to summary adjudication on the remaining causes of action. Accordingly, we affirm in part, reverse in part, and remand with directions.
FACTS
Plaintiff was a sworn peace officer and an investigator for the DMV. He was arrested for shooting off a handgun in the early morning hours while off duty in Newport Beach. He would eventually plead no contest to one count of willfully discharging a firearm in a grossly negligent manner. (Pen. Code, § 246.3.)
A month after plaintiff’s arrest, the DMV informed him it was conducting an internal investigation. The DMV sent plaintiff a letter stating, “The investigation shall focus on an off duty incident that you were involved in occurring on February 05, 2005. At question, is the allegation(s) [¶] That you willfully and negligently discharged your firearm from a motor vehicle within the confines of the City of Newport Beach, California in an area known as the ‘Back Bay’. [¶] Based upon an immediate investigation of the alleged incident, by the Newport Beach Police Department, you were subsequently arrested, and booked for a violation of Penal Code Section 246.3, a felony.” The letter also stated, “this investigation may concern violations of the Penal Code, Government Code and/or Departmental Policy and Procedure.” It specified the time and place of an interview with plaintiff, identified the persons who would conduct the interview, and informed plaintiff he could have a representative present. DMV investigators interviewed plaintiff on March 21, 2005.
The DMV served plaintiff with a “Notice of Adverse Action” on March 24, 2005. The notice informed plaintiff that he would be terminated effective April 5, 2005, on the grounds of inexcusable neglect of duty, dishonesty, discourteous treatment, willful disobedience, and other failure of good behavior. (§ 19572, subds. (d), (f), (m), (o), (t).) It described plaintiff’s conduct before and after his arrest, noting he negligently discharged a firearm after consuming alcoholic beverages, and then acted dishonestly and discourteously to the arresting officers. It observed plaintiff’s conduct violated the DMV’s Statement of Incompatible Activities and the Law Enforcement Code of Ethics. The notice informed plaintiff he could respond to the notice orally or in writing before April 5.
Along with the Notice of Adverse Action, the DMV served plaintiff with various documents. It provided copies of the initial arrest report, a supplemental arrest report, property and identification reports related to the arrest, Penal Code section 246.3, the Statement of Incompatible Activities and the Law Enforcement Code of Ethics, and some internal memoranda from defendants Kiesewetter and Champion regarding the internal investigation.
On March 30, 2005, plaintiff requested a hearing, pursuant to Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215 (Skelly), which affords public employees certain due process rights regarding disciplinary action. The Skelly hearing was set for April 19, 2005, which plaintiff concedes was a “mutually convenient date.” Meanwhile, the DMV terminated plaintiff on April 5, 2005.
On April 11, 2005, plaintiff requested “all investigative materials and any other information that was used to form the basis of the [disciplinary] decision” and “any relevant information related to the proposed disciplinary action.” It singled out 21 categories of documents for production. The DMV provided no documents to plaintiff in response to this request before the Skelly hearing. The DMV conducted the Skelly hearing on April 19, 2005. The hearing officer later indicated the termination would stand.
Plaintiff filed a complaint against the DMV and the other defendants in June 2005. In the operative first amended complaint, he asserted four causes of action based on defendants’ alleged violations of POBRA, Labor Code section 432.7, Labor Code section 96, and his civil rights and right to due process. He sought a writ of mandate or permanent injunction barring defendants from terminating him, using his interview statements to discipline him, or referring to the purported termination in any personnel files. He also sought civil penalties, damages, and attorney fees.
Plaintiff alleges defendant Gregory Kiesewetter was a DMV investigations division commander and plaintiff’s commanding officer, defendant Doug Brenn was the deputy chief of the investigations division commander, and defendant Michael S. Champion was the deputy director of the investigations division commander.
After the court denied plaintiff’s motion for a writ of mandate, defendants moved for summary judgment or, in the alternative, summary adjudication on each cause of action. The court granted the summary judgment motion in its entirety and entered judgment accordingly.
Plaintiff sought a writ of mandate pursuant to Code of Civil Procedure section 1085 challenging the alleged statutory violations of POBRA and Labor Code section 432.7. He did not seek a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 challenging the alleged violations of his right to due process of law or his civil rights.
DISCUSSION
Summary Judgment, Summary Adjudication, and Causes of Action
To obtain summary judgment, defendants must show no triable issues exist as to any material fact and that they are entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Defendants bear the “burden of persuasion that ‘one or more elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) They also bear the “burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Ibid.) While defendants need not produce evidence “conclusively negat[ing]” a cause of action (id. at p. 853), they must produce evidence “show[ing] that the plaintiff does not possess needed evidence [and] must also show that the plaintiff cannot reasonably obtain needed evidence.” (Id. at p. 854.)
If defendants meet their burdens, plaintiff bears the “burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
Because defendants moved for summary adjudication in the alternative to summary judgment, we may consider whether the parties have met their respective burdens as to each of plaintiff’s causes of action. (See Code Civ. Proc., § 437c, subd. (f)(1) [“A party may move for summary adjudication as to one or more causes of action within an action”].) We may reverse the judgment and remand with directions to the court to enter an order granting or denying summary adjudication on the individual causes of action as appropriate. (See, e.g., Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230, 1239 [adopting this procedure]; Kelly v. Stamps.com, Inc. (2005) 135 Cal.App.4th 1088, 1091, 1105 [same].)
Defendants Are Not Entitled to Summary Adjudication on the POBRA Cause of Action
In the first cause of action, plaintiff alleged defendants violated various POBRA provisions. POBRA was enacted to preserve effective law enforcement by maintaining stable employment relationships between law enforcement agencies and their officers. (§ 3301.) It “requires that law enforcement agencies throughout the state afford minimum procedural rights to their peace officer employees.” (Pasadena Police Officers Assn. v. City of Pasadena (1990) 51 Cal.3d 564, 572, fn. omitted (Pasadena).) An officer whose POBRA rights are violated may obtain “appropriate injunctive or other extraordinary relief.” (§ 3309.5, subd. (d)(1).) If the violation is malicious, the officer may recover a civil penalty up to $25,000 plus any actual damages. (§ 3309.5, subd. (e).)
Plaintiff alleges defendants violated four different POBRA rights, set forth in various statutory provisions: (1) the right to notice of the nature of the internal investigation before any interrogation, (2) the right to post-interrogation disclosure of certain investigation-related documents, (3) the right to be free of retaliation for asserting POBRA rights, and (4) the right to review personnel files containing adverse comments or supporting his termination. We will address these violations in order.
Defendants contend plaintiff’s POBRA claims are barred because he failed to comply with the Government Claims Act. (§ 905.) “The policies underlying POBRA are not significantly impacted by requiring that the officer seeking damages or monetary relief as the primary purpose of the action (and not as relief merely incidental to injunctive or other extraordinary relief) to comply with the claim presentation requirements of the Government Claims Act.” (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1173.) Plaintiff’s “primary purpose” here was to obtain a writ of mandate or permanent injunction vacating his termination, barring defendants from using his interview against him, and purging references to the investigation from his personnel files. (Cf. id. at pp. 1168-1169 [noting the plaintiff did not seek reinstatement through a mandamus action or in his prayers for injunctive or declaratory relief].) The complaint never specifies any amount of requested damages or civil penalties. These claims were incidental to the extraordinary relief he sought. (Cf. ibid. [noting the complaint’s prominent claims for damages and $325,000 in civil penalties].)
First, plaintiff alleges defendants violated section 3303, subdivision (c). This statute requires the DMV to “inform[ plaintiff] of the nature of the investigation prior to any interrogation.” (§ 3303, subd. (c).) While the notice need not provide a “detailed specification of the exact charges leveled” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 933 (Hinrichs)), it should at least inform plaintiff of the “essential character or constitution” of the investigation. (Webster’s 3d New Internat. Dict. (2002) p. 1507 [defining “nature”].) Before the March 21 interview, the DMV notified plaintiff it was investigating “an off duty incident that you were involved in occurring on February 05, 2005,” it alleged “willful[] and negligent[] discharge[ of his] firearm,” and his “subsequent[] arrest[].” The DMV also notified plaintiff, “this investigation may concern violations of the Penal Code, Government Code and/or Departmental Policy and Procedure.”
Plaintiff alleges defendants questioned him on matters not specified in the notice. He asserts on appeal the DMV investigated whether he was untruthful, uncooperative, or discourteous with the arresting officers; whether he violated the Statement of Incompatible Activities, the Code of Ethics, or was willfully disobedient; whether he was involved in prior misconduct involving the Irvine Police Department; and whether he was the subject of an internal investigation by a prior employer.
A triable issue exists whether defendants adequately informed plaintiff of the nature of the investigation. Defendants bear the burden of making a prima facie showing that they informed plaintiff of the essential character of the investigation. They presented evidence — the notice itself — showing that the DMV notified plaintiff it was investigating the discharge of his firearm, his subsequent arrest, and violations of the Government Code and department policy. This evidence shows, as a matter of law, plaintiff had notice the DMV might investigate whether the discharge of his firearm violated the DMV’s Statement of Incompatible Activities, the Law Enforcement Code of Ethics, or was willfully disobedient or inexcusable neglect of duty. It further shows, as a matter of law, plaintiff had notice the DMV might investigate whether his conduct during the arrest violated Government Code sections prohibiting dishonesty and discourteous treatment.
But defendants failed to produce evidence showing that the DMV notified plaintiff it was investigating any prior misconduct. The notice is limited to the February 5 incident and arrest. It says nothing about prior misconduct. Moreover, plaintiff produced evidence showing the DMV questioned him about an incident involving the Irvine Police Department and an internal investigation of him by a prior employer. Plaintiff thereby raised a triable issue of material fact whether the questions on these topics constituted part of the investigation’s essential character, entitling him to notice that the DMV was investigating these issues.
Second, plaintiff alleges defendants violated section 3303, subdivision (g). This statute requires the DMV to provide plaintiff with (1) any tape recording of the interrogation “if any further proceedings are contemplated or prior to any further interrogation at a subsequent time”; (2) “a transcribed copy of any notes made by a stenographer”; and (3) “any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential.” (§ 3303, subd. (g).) Plaintiff alleges defendants violated section 3303, subdivision (g) by failing to produce the documents he requested.
Triable issues exist whether defendants sufficiently complied with the statutory production requirements. Defendants bear the burden of making a prima facie showing that (1) they were not contemplating further proceedings when plaintiff requested the tape recording, (2) they produced the stenographer notes, and (3) they produced all non-confidential reports and complaints. Defendants presented evidence showing they produced various arrests reports and internal memoranda regarding the internal investigation. But they did not produce evidence showing they produced the requested tape recording, stenographer’s notes, or other requested documents. Plaintiff, on the other hand, presented evidence that defendants eventually produced the complete investigation file, including the tape recording, after this litigation started. Triable issues of material fact abound, including (1) whether defendants contemplated further proceedings against plaintiff, requiring earlier disclosure of the tape recording (§ 3303, subd. (g)), (2) whether the other requested documents constituted “‘reports’” or “‘complaints’” subject to disclosure (see Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1286 (Gilbert)), and (3) whether defendants disclosed the stenographer notes and requested documents in a reasonable time (see id. at p. 1293).
In Gilbert, supra, 130 Cal.App.4th 1264, the court held section 3303, subdivision (g) requires disclosure only of the final investigative report and formal complaints. (Gilbert, at p. 1286.) It observed, “[i]n the context of an investigation, a ‘report’ would be generally defined as a detailed account or statement [citation] and a ‘complaint’ would be generally defined as ‘a formal allegation against a party.’ [Citation.] Both ‘report’ and ‘complaint’ suggest a more formal presentation than the raw or original source materials from which a report may be drawn.” (Ibid.) It also noted, “[f]air treatment of such officer does not require that all the material amassed in the course of the investigation, such as raw notes, written communications, records obtained, and interviews conducted, be provided to the officer following the officer’s interrogation. Nothing in [POBRA’s] language or legislative history reveals a Legislative intent to provide an officer who is the subject of an administrative internal affairs investigation with broad statutory discovery rights similar to those held by criminal defendants.” (Id. at pp. 1286-1287.) Gilbert disagreed with an earlier case suggesting the section requires disclosure of underlying investigative materials. (Id. at pp. 1284-1285 [criticizing San Diego Police Officers Assn. v. City of San Diego (2002) 98 Cal.App.4th 779, 783-784].) Gilbert is the more persuasive case.
“Section 3303, subdivision (g), does not specify any time frame for disclosure and . . . the California Supreme Court has determined no disclosure is required before interrogation. [Citation.] Consequently, a reasonable, post-interrogation time frame is implied.” (Gilbert, supra, 130 Cal.App.4th at p. 1293.) Disclosure is not necessarily required before the Skelly hearing. The section “defines only disclosure rights incident to an investigation, it does not address an officer’s entitlement to discovery in the event he or she is administratively charged with misconduct.” (Pasadena, supra, 51 Cal.3d at p. 575, italics in original]; see also Gilbert, supra, 130 Cal.App.4th at pp. 1286-1287 [distinguishing POBRA rights from due process rights under Skelly].)
Third, plaintiff alleges defendants violated section 3304. That section bars defendants from retaliating against plaintiff by taking “punitive action . . . because of [his] lawful exercise of the rights granted” by POBRA. (§ 3304, subd. (a).) Plaintiff asserts defendants retaliated against his assertion of his rights by terminating him prior to the Skelly hearing and without producing the requested documents. Defendants bear the burden of making a prima facie showing that no such retaliation occurred. But defendants did not mention section 3304 or specifically address plaintiff’s retaliation allegation in their moving papers below or in their brief on appeal — nor did the court in its order granting summary judgment. This allegation simply slipped through the cracks. More than this is required to support summary adjudication.
Finally, plaintiff alleges defendants violated sections 3305, 3306, and 3306.5. These statutes authorize plaintiff to read and respond in writing to any adverse comments placed in his personnel file or “any other file used for any personnel purposes” (§§ 3305, 3306), and to inspect upon request any files used to impose disciplinary action. (§ 3306.5.) Plaintiff asserts these statutes entitled him to review and respond to the documents he requested.
Triable issues exist whether defendants complied with these requirements. Defendants bear the burden of making a prima facie showing that the requested documents did not contain adverse comments or were not placed in files used for personnel purposes (§§ 3305, 3306), or were not used to impose disciplinary action. (§ 3306.5.) Defendants failed to do so. They presented no evidence showing the requested documents lacked adverse comments. While defendants presented evidence the requested documents were not placed in plaintiff’s “official” personnel file in Sacramento, they failed to produce evidence showing the files in which the documents were kept were not “used for any personnel purposes.” (§ 3305.) And defendants failed to present evidence showing the requested documents were not used to impose disciplinary action. (§ 3306.5)
In short, defendants failed to show no triable issues of material fact existed and that they were entitled to adjudication as a matter of law as to the four POBRA violations alleged in the first cause of action. On remand, the court must deny summary adjudication as to this cause of action.
Defendants contend any POBRA violations were harmless. They may try to show harmless error at trial. (See Hinrichs, supra, 125 Cal.App.4th at p. 928 [violation of section 3303, subdivision (c), is subject to harmless error analysis].) But defendants did not seek summary judgment on this ground, and their separate statement of facts does not support summary judgment on it.
Defendants are Entitled to Summary Adjudication on the Labor Code Causes of Action
Plaintiff alleged violations of two Labor Code sections in his second and third causes of action. Defendants are entitled to summary adjudication on both of the Labor Code causes of action.
In the second cause of action, plaintiff alleged defendants violated Labor Code section 432.7, subdivision (a), by basing his termination on the arrest report. The statute provides, “[n]o employer . . . shall . . . utilize, as a factor in determining any condition of employment including hiring, promotion, [or] termination . . . any record of arrest or detention that did not result in conviction . . . .” (Lab. Code, § 432.7, subd. (a).) Plaintiff had not yet been convicted when the DMV terminated his employment or when he filed this action.
Defendants contended in their moving papers that the section is nonetheless inapplicable because plaintiff’s arrest ultimately led to his conviction. Because the court relied upon another ground in granting summary judgment, we invited the parties to file supplemental briefs on this issue.
The court granted summary judgment on the ground that section 19572 trumps Labor Code section 432.7 and authorizes termination for “failure of good behavior,” even if it does not lead to a conviction. (§ 19572, subd. (t); Anderson v. State Personnel Bd. (1987) 194 Cal.App.3d 761, 768-769 [failure of good behavior does not require criminal conduct].) But the Labor Code section was enacted 30 years after the Government Code section. (Compare Stats. 1975, c. 1043, p. 2457 § 2 [enacting Labor Code, § 432.7] with Stats. 1945 c. 123, p. 567 [enacting former § 19572, subd. (r)].) More basically, there is no conflict. The Labor Code bars reliance upon arrest reports, not the conduct underlying the arrest. (Cranston v. City of Richmond (1985) 40 Cal.3d 755, 773-774.)
Plaintiff’s conviction precludes his reliance on Labor Code section 432.7, subdivision (a), as a matter of law. At the pleading stage, a plaintiff asserting a cause of action under this statute “must affirmatively allege that the arrest did not result in a conviction.” (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1044, italics in original.) This is because “[t]he clear purpose of [Labor Code] section 432.7 is to prevent the misuse of criminal offender records information, not to shelter an employee from an investigation by his employer for serious misconduct.” (Ibid.) A plaintiff cannot rely on “artful drafting of [a] complaint” by alleging only that the arrest had not led to a conviction before termination. (Ibid.) It follows that a plaintiff cannot survive summary judgment where the undisputed evidence shows his arrest did ultimately lead to a conviction, even if the conviction postdates his termination or the filing of his complaint. Defendants presented evidence showing that plaintiff was convicted of the crime for which he was arrested. Plaintiff failed to raise a triable issue on this fact. For this reason, defendants are entitled to summary adjudication on plaintiff’s second cause of action.
Defendants attached a certified minute order from plaintiff’s criminal case to their reply memorandum of points and authorities. The proper method of submitting documentary evidence on summary judgment is to submit it with an authenticating declaration with the moving papers, not the reply papers, and to note the evidence in the separate statement of material facts. But plaintiff did not object to defendant’s failure to follow formalities. Defendants also asked the court to take judicial notice of the minute order, but failed to secure a ruling on their request. Courts must take judicial notice of California court records upon request. (Evid. Code, §§ 452, subd. (d), 453.)
Because we affirm on this ground, we need not reach defendants’ contention that Labor Code section 432.7 does not apply to police officers like plaintiff.
In the third cause of action, plaintiff alleged defendants violated Labor Code section 96, by terminating him partly on the ground that he was dishonest and discourteous to the arresting officers. The statute provides, “The Labor Commissioner . . . shall, upon the filing of a claim therefor by an employee . . . with the Labor Commissioner, take assignments of: [¶] . . . [¶] (k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.” (Lab. Code, § 96, subd. (k).) Plaintiff contends his conduct towards the arresting officers was a lawful assertion of his right against self-incrimination.
As matter of law, Labor Code section 96, subdivision (k) does not give plaintiff any protection against being terminated for lawful conduct that is incompatible with his duties as a peace officer. “Lab[or] Code section 96, subdivision (k), does not createany new public policies. Rather, it authorizes the Labor Commissioner to vindicate existing public policies in favor of individual employees.” (Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525, 535, italics added.) More precisely, it authorizes the Labor Commissioner to “assert . . . recognized constitutional rights.” (Id. at p. 533.) “All the constitutional rights peace officers have now are the same ones they had prior to the 1999 amendment of [Labor Code] section 96” that added subdivision (k). (83 Ops.Cal.Atty.Gen. 226, 229 (2000).)
At our invitation, the parties filed supplemental briefs on whether Labor Code section 96, subdivision (k), creates a private right of action. As suggested above, it does not. But plaintiff, for the first time in his supplemental brief, notes that Labor Code section 98.6 sets forth a private right of action when an employee or applicant is disciplined for “engag[ing] in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96.” Plaintiff thus has a right under Labor Code section 98.6 to assert a violation of Labor Code section 96, subdivision (k). Plaintiff has not asserted any other rights listed in Labor Code section 98.6.
Thus, Labor Code section 96, subdivision (k), does “not abrogate existing law that permits the disciplining of peace officers for off-duty conduct occurring away from their place of employment that is otherwise lawful but conflicts with their duties as peace officers.” (83 Ops.Cal.Atty.Gen., supra, at p. 226.) Specifically, plaintiff had “neither a constitutional nor a statutory right to remain silent free of administrative sanction.” (Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 827 (Lybarger) [police officer may be administratively disciplined for asserting his right against self-incrimination].) While plaintiff’s failure to cooperate with the arresting officers may not be used against him in a criminal proceeding, the DMV may use it to terminate plaintiff on the grounds of dishonesty, discourteous treatment, and a failure of good behavior that discredits the DMV. (Id. at pp. 827-828; see also § 19572, subds. (f), (m), (t).)
In this sense, the court correctly held section 19572, which authorizes termination for “failure of good behavior,” “trumps” Labor Code section 96, subdivision (k). Plaintiff had no pre-existing constitutional right to avoid administrative discipline despite misleading or stonewalling the fellow officers who arrested him, or otherwise engaging in conduct incompatible with his position as a “‘guardian[] of peace and security of the community.’” (Pasadena, supra, 51 Cal.3d at p. 572; accord Lybarger, supra, 40 Cal.3d at pp. 827-828.) Summary adjudication for defendants on this cause of action is appropriate.
Defendants are Entitled to Summary Adjudication on the Due Process/Civil Rights Cause of Action
In the fourth cause of action, plaintiff alleged defendants’ conduct violated his constitutional right to due process of law and his civil rights. The court held plaintiff’s rights are those set forth in Skelly, supra, 15 Cal.3d 194. It further held plaintiff’s redress for a Skelly violation is to appeal from the DMV’s decision to the State Personnel Board and, if necessary, to petition for a writ of mandate from the State Personnel Board’s decision. Plaintiff concedes in his reply brief that his appeal to the State Personnel Board is still pending.
“It is well settled that ‘[j]udicial intervention is premature until the administrative agency has rendered a final decision on the merits. Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings. [Citations.] The failure to exhaust administrative remedies will bar actions for damages, including tort claims.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520.) A public employee alleging violation of Skelly pretermination due process rights must exhaust his or her administrative remedies as “a prerequisite to seeking judicial relief.” (Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 565.) As plaintiff’s appeal to the State Personnel Board is apparently still pending, he has not yet exhausted his administrative remedies.
In Gilbert, supra, 130 Cal.App.4th at p. 1281, the court addressed the plaintiff’s due process claim despite his pending appeal to the State Personnel Board. Nothing suggests the defendant had raised, or the court had considered, plaintiff’s failure to exhaust his administrative remedies. “‘It is axiomatic that cases are not authority for propositions not considered.’” (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)
While plaintiff need not exhaust his administrative remedies before pursuing his civil rights claim under 42 U.S.C. § 1983, once he elects to pursue an administrative remedy, he must exhaust his judicial remedies. “[U]nless 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.) This doctrine “is a form of res judicata, of giving collateral estoppel effect to the administrative agency’s decision, because that decision has achieved finality due to the aggrieved party’s failure to pursue to the exclusive judicial remedy for reviewing administrative action.” (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 646.) The doctrine applies to actions filed pursuant to 42 U.S.C. § 1983. (Ibid.; see also Johnson, supra, 24 Cal.4that pp. 70-71, 74 [citing cases].) “California has made it quite clear that a discharged civil servant who elects an administrative forum for review of his or her termination must succeed in overturning that administrative decision through the judicial mandamus review procedure prior to filing a suit for damages on claims arising out of the termination.” (Miller v. County of Santa Cruz (9th Cir. 1994) 39 F.3d 1030, 1038.) Here, plaintiff elected to participate in an administrative Skelly hearing, at which his termination was upheld. This decision is binding upon plaintiff and precludes his civil rights claim unless and until he challenges it by writ of administrative mandamus, which he has not done. (Code Civ. Proc., § 1094.5.)
Even if plaintiff had exhausted his administrative and judicial remedies, the record shows no due process or civil rights violations. In Skelly, supra, 15 Cal.3d 194, the California Supreme Court held that permanent civil service employees have a property interest in continued employment. (Id. at pp. 207-208.) Thus, public employees facing discipline must “be accorded certain procedural rights before the discipline becomes effective. As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” (Id. at p. 215.)
Plaintiff contends summary adjudication is improper on his due process and civil rights claims because triable issues exist as to whether defendants gave him adequate notice of his termination, provided him with the materials underlying the termination, and gave him the right to respond before removing him from the payroll on April 5, 2005. Not so.
No triable issue exists whether defendants gave plaintiff adequate notice of his termination and the reasons for it. The Notice of Adverse Action unambiguously informed plaintiff he would be dismissed. It detailed, in three typewritten pages, plaintiff’s shooting of the gun, the ensuing pursuit by the police, the arresting officer’s apprehension of plaintiff, and plaintiff’s denials and false statements to the officer. The notice identified section 19572 as authority for terminating plaintiff on the grounds of inexcusable neglect of duty, dishonesty, discourteous treatment, willful disobedience, and other failure of good behavior. It also stated plaintiff’s conduct violated the DMV’s Statement of Incompatible Activities and the Law Enforcement Code of Ethics. As a matter of law, plaintiff had adequate notice of his termination and the reasons for it.
Plaintiff has constitutional due process rights to notice of his termination and the reasons for it. (Skelly, supra, 15 Cal.3d at p. 215.) He has a distinct statutory right under POBRA to notice of the nature of an internal investigation before being interrogated. (§ 3303, subd. (c).) A triable issue may exist as to whether plaintiff had notice of the nature of the investigation without a triable issue existing as to whether he had notice of the termination.
Also, no triable issue exists whether defendants gave plaintiff the “materials upon which [his termination] is based.” (Skelly, supra, 15 Cal.3d at p. 215.) “Constitutional principles of due process do not create general rights of discovery.” (Gilbert, supra, 130 Cal.App.4th at p. 1280.) Skelly’s reference to “materials” does not mean “each and every document identified in [the internal investigation] was required to be produced prior to [plaintiff’s] pretermination hearing in order to satisfy due process.” (Gilbert at p. 1280.) All that due process requires is that plaintiff be “adequately provided ‘an explanation of the employer’s evidence’ [citation] and ‘notice of the substance of the relevant supporting evidence’ [citation], sufficient to enable [plaintiff] to adequately respond at the pretermination stage.” (Ibid.) The Notice of Adverse Action and the arrest reports that defendants served on plaintiff adequately disclosed the substance of the evidence supporting plaintiff’s termination as a matter of law.
Plaintiff’s due process right to the materials upon which his termination was based (Skelly, supra, 15 Cal.3d at p. 215) is distinct from his statutory right under POBRA to internal investigation reports and complaints. (§ 3303, subd. (g).)
Finally, no triable issue exists as to whether plaintiff had the right to respond before he was removed from the payroll. The Notice of Adverse Action unambiguously states plaintiff would be terminated on April 5 and had the right to respond orally or in writing before that date. While plaintiff made a request on March 30, 2005, for a Skelly hearing, he concedes the hearing was scheduled for “the mutually convenient date” of April 19, 2005. Plaintiff thus had the right to respond to the Notice of Adverse Action before he was removed from the payroll. He simply chose not to exercise his right until a “mutually convenient” time. As a matter of law, mutually convenient scheduling does not violate due process. For all these reasons, defendants are entitled to summary adjudication on this cause of action.
DISPOSITION
The judgment is reversed. The matter is remanded to the trial court with directions to (1) vacate its order granting summary judgment, and (2) enter an order granting summary adjudication as to the second, third, and fourth causes of action and denying summary adjudication as to the first cause of action. Plaintiff shall recover his costs on appeal.
WE CONCUR: SILLS, P. J., FYBEL, J.