Hood v. Hacienda La Puente Unified School District

RONALD HOOD, Plaintiff and Appellant, v. HACIENDA LA PUENTE UNIFIED SCHOOL DISTRICT, Defendant and Respondent. No. B108919 (Super. Ct. No. BC149260) California Court of Appeal Second Appellate District Division Five Filed July 6, 1998
CERTIFIED FOR PARTIAL PUBLICATION*
        APPEAL from a judgment of the Superior Court of Los Angeles County, Charles W. McCoy, Judge. Affirmed.
        Douglas Brian Levinson for Plaintiff and Appellant.
        Kohrs, Fiske & Steur and Conrad Kohrs, J. Peter Fiske for Defendant and Respondent.

I. INTRODUCTION         Ronald Hood (plaintiff) appeals from a judgment of dismissal in favor of Hacienda La Puente Unified School District (defendant) entered after its demurrer was sustained without leave to amend. ¹ Plaintiff, a former teacher, had sued defendant for malicious prosecution, and for allegedly retaliating against him for "whistle-blowing." We affirm the judgment of dismissal. Plaintiff also appeals from an order staying discovery pending a ruling on defendant's demurrer. However, because we affirm the order of dismissal, the appeal from the discovery order is moot. In the published portion of the opinion, we discuss the effects of plaintiff's failure to allege he exhausted his administrative remedies pursuant to Government Code ² section 8547.8, subdivision (c), in connection with his second cause of action for retaliation in violation of section 19683.

II. THE FIRST AMENDED COMPLAINT         Plaintiff's first amended complaint, the operative pleading, alleged as follows. Defendant and its counsel, who "may have been the agent and employee of each other" initiated a civil proceeding against plaintiff. In so doing, the first amended complaint alleged: "[S]ome defendants were acting within the course and scope of this agency and employment while others were acting beyond the course and scope of their agency and employment." In instituting the lawsuit, the operative pleading alleged: "[That] each named defendant was acting beyond any grant of authority to the School District. Specifically, the [p]laintiff is informed and believes and based on that information and belief alleges that at all relevant times the School District lacked authority to institute or prosecute civil actions to recover damages as a governmental entity." The lawsuit terminated in plaintiff's favor when defendant and its counsel dismissed it with prejudice, less than a week before trial. In initiating and maintaining the lawsuit, defendant acted without probable cause. Defendant initiated or maintained the lawsuit without conducting any reasonable investigation or basis in fact or law, and for the purpose of improperly coercing plaintiff to settle or abandon a wrongful termination claim he was pursuing. These allegations were the basis for plaintiff's first cause of action, for malicious prosecution.
        Plaintiff's second cause of action was for statutory damages "pursuant to Government Code [section] 19683." He alleged as follows. On or about January 1, 1994, plaintiff was employed by defendant and was a "whistle-blower" within the meaning of Government Code section 19683. Defendant retaliated against plaintiff for whistle-blowing by: filing its lawsuit against plaintiff without any factual or legal basis; commencing the litigation solely in order to harass and punish plaintiff; and filing a formal challenge to plaintiff's teaching credential.

III. DISCUSSION Standard of Review         The Supreme Court set forth the applicable standard of review in Blank v. Kirwan (1985) 39 Cal.3d 311, 318, as follows: "In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Accord, Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) Because the present case involves claims against a public entity and is controlled by the California Tort Claims Act, the following pleading rules apply: "However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, 'to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.' [Citations.]" (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795; see Cal. Government Tort Liability Practice (Cont. Ed. Bar 1992), Claims and Actions, § 6.127, pp. 838-839.)

Failure to Comply with Section 8547.8, Subdivision (c), Bars Plaintiff's Second Cause of Action         In his second cause of action, plaintiff sought damages on the theory defendant had retaliated against him for disclosing improper governmental activity. We conclude plaintiff's failure to allege pursuit of an administrative prerequisite to commencing a lawsuit for damages as required by section 8547.8 barred that cause of action. Plaintiff had a duty to plead exhaustion of administrative remedies or facts which indicate the duty to do so has been excused. (Schoederbek v. Carlson (1988) 113 Cal.App.3d 1029, 1033, disapproved on another point in Woosley v. State of California (1992) 3 Cal.4th 758, 792; Westinghouse Elec. Corp. v. County of Los Angeles (1974) 42 Cal.App.3d 32, 37.)
        Section 8547.3 prohibits any state employee from "directly or indirectly us[ing] or attempt[ing] to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the right of that person to disclose to the State Auditor [improper governmental activities]." Section 8547.8 provides for the filing of a written complaint with the State Personnel Board. Section 19683 provides for hearings before the State Personnel Board upon a written complaint of reprisal or retaliation as prohibited by section 8547.3. A civil action for damages against a state employee who engages in the prohibited conduct is authorized by subdivision (c) of section 8547.3, and subdivision (c) of section 8547.8. ³ However, the right to bring an action for civil damages is expressly conditioned on first filing a complaint with the State Personnel Board. Subdivision (c) of section 8547.8 provides: "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 state employee or applicant for state employment for having disclosed improper governmental activities 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 State Personnel Board pursuant to subdivision (a) of this section, and the board has failed to reach a decision regarding any hearing conducted pursuant to Section 19683." (Italics added.)
        The failure to comply with section 8547.8, subdivision (c), was raised by the superior court judge at the hearing on defendant's demurrer. It is also raised in defendant's brief on appeal. We conclude the issue is jurisdictional. (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1151; Lynn v. Duckel (1956) 46 Cal.2d 845, 849-850; Holderby v. Internat. Union etc. Engrs. (1955) 45 Cal.2d 843, 846; United States v. Superior Court (1941) 19 Cal.2d 189, 194; Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 291-293.) As the Supreme Court explained in Abelleira v. District Court of Appeal, supra, 17 Cal.2d at page 292, ". . . the [exhaustion of administrative remedies] 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." More recently, in California Correctional Peace Officers Assn. v. State Personnel Bd., supra, 10 Cal.4th at page 1151, the Supreme Court stated: "Exhaustion of administrative remedies usually contemplates termination of all available, nonduplicative administrative review procedures. [Citations.] . . . [I]n California a requirement that administrative remedies be exhausted is jurisdictional. (Abelleira v. District Court of Appeal, supra, 17 Cal.2d 280, 293.)" Moreover, failure to exhaust an administrative remedy is a jurisdictional issue that may be raised at any time. (Sampsell v. Superior Court (1948) 32 Cal.2d 763, 773, disapproved on other grounds in Robinson v. Superior Court (1950) 35 Cal.2d 379, 386 [subject matter jurisdiction may not be waived]; Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959, 963 [failure to exhaust administrative remedies may be raised at any time]; Bleeck v. State Bd. of Optometry (1971) 18 Cal.App.3d 415, 432 [same]; People v. Coit Ranch, Inc. (1962) 204 Cal.App.2d 52, 57 [same]; but see contra, Mission Housing Development Co. v. City and County of San Francisco (1997) 59 Cal.App.4th 55, 67; Azusa Land Reclamation Co., Inc. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1215-1216; Consumers Union of U.S., Inc. v. Alta-Dena Certified Dairy (1992) 4 Cal.App.4th 963, 976; Wallis v. Farmers Group, Inc. (1990) 220 Cal.App.3d 718, 735-736; Sacramento County Deputy Sheriffs' Assn. v. County of Sacramento (1990) 220 Cal.App.3d 280, 286; Doster v. County of San Diego (1988) 203 Cal.App.3d 257, 260; Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 222.) We need not resolve the foregoing dispute in the decisional authority. In the present case, the issue was raised in the trial court and has been preserved.
        Plaintiff has not alleged compliance with section 8547.8, subdivision (c). Nor is it asserted that he can allege such compliance. Therefore, the demurrer to his second cause of action was properly sustained without leave to amend. ⁴

[This Part Is Not Certified for Publication]
1.        Defendant is Immune from Liability for Malicious Prosecution         Plaintiff concedes defendant is immune from liability under sections 821.6 and 815.2 for instituting or prosecuting a judicial proceeding within the scope of employment, even if it acted maliciously and without probable cause. Section 821.6 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." The immunity extends to all public entity employees. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 756-757; Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436.) It also extends to the public entity; under section 815.2, a public entity is not liable for an injury caused by an employee where the employee is immune from liability. (§ 815.2, subd. (b); Asgari v. City of Los Angeles, supra, 15 Cal.4th at pp. 752, fn. 5, 753, fn. 7; Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1158.) Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. [¶] (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." As the Legislative Committee Comment to section 821.6 explains: "The California courts have repeatedly held public entities and public employees immune from liability for this sort of conduct. Dawson v. Martin, 150 Cal.App.2d 379 [] (1957) (public entities). White v. Towers, 37 Cal.2d 727 [] (1951); Coverstone v. Davies, 38 Cal.2d 315 [] (1952); Hardy v. Vial, 48 Cal.2d 577 [] (1957) (public employees). [Section 821.6] continues the existing immunity of public employees; and, because no statute imposes liability on public entities for malicious prosecution, public entities likewise are immune from liability." (Legis. Committee com., 32 West's Ann. Gov. Code § 821.6, (1995) p. 274.) Therefore, defendant is immune from liability for malicious prosecution within the scope of employment.
        Plaintiff argues "[section] 821.6 only immunizes acts within the scope of employment," and he "alleged that the tortious misconduct was not within the scope of employment." Plaintiff's first amended complaint alleged, "In doing the acts alleged . . . some defendants . . . were acting beyond the course and scope of their agency and employment." That allegation was sufficient to withstand a general demurrer. (Kiseskey v. Carpenters' Trust for Southern California (1983) 144 Cal.App.3d 222, 230; Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376; Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 882.) Accepting plaintiff's allegation as true (Blank v. Kirwan, supra, 39 Cal.3d at p. 318) and assuming an individual who initiated or prosecuted the action on defendant's behalf acted outside the scope of employment, that person would be subject to liability. (White v. Towers, supra, 37 Cal.2d at p. 733; Vivell v. City of Belmont (1969) 274 Cal.App.2d 38, 41.) However, defendant, a public entity, would not be liable for that conduct. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209; Vivell v. City of Belmont, supra, 274 Cal.App.2d at p. 41.) To establish public entity liability for an employee's acts, the employee must have acted within the scope of employment. (§ 815.2; Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at p. 1209; Healdsburg etc. P. Co. v. Healdsburg (1907) 5 Cal.App. 558, 560-562; see Cal. Government Tort Liability Practice (Cont.Ed.Bar 3d ed. 1992) General Liability & Immunity Principles, § 2.60, p. 132.) Section 815.2 imposes derivative liability on a public entity for an employee's act or omission only when the employee acts "within the scope of his employment . . . ." If the employee or agent was not acting within the scope of his or her employment or authority, defendant cannot be held liable. (Kimberly M. v. Los Angeles Unified School Dist. (1989) 215 Cal.App.3d 545, 548-549; Vivell v. City of Belmont, supra, 274 Cal.App.2d at p. 41; Ravettino v. City of San Diego (1945) 70 Cal.App.2d 37, 44; Woodman v. Hemet Union High School Dist. (1934) 136 Cal.App. 544, 552.) Therefore, accepting as true the allegation that an agent or employee maliciously and without probable cause instituted and prosecuted the action outside the scope of employment, defendant cannot be held liable for that act. ⁵

2.        There Was No Abuse of Discretion in Denying Leave to Amend as to the Malicious Prosecution Cause of Action         Plaintiff asserts it was an abuse of discretion to deny him leave to amend because "[h]ad [he] been permitted to conduct discovery . . . it is highly likely . . . he would [have been] able to properly plead additional claims such as tortuous interference with prospective economic advantage; defamation; intentional infliction of emotional distress." We find no abuse of discretion.
        The section 821.6 immunity is not limited to claims for malicious prosecution; it precludes liability for any injury causally connected with the initiation or prosecution of a judicial proceeding. (Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at p. 1211; Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1498-1499; Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 497.) This is because "'[i]mmunity under . . . section 821.6 is dependent upon how the injury is caused . . . .'" (Asgari v. City of Los Angeles, supra, 15 Cal.4th at p. 757; Baughman v. State of California (1995) 38 Cal.App.4th 182, 192; Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at p. 1211.) The immunity extends to claims for: negligent and intentional interference with economic relations (Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 298); negligence (Stearns v. Los Angeles County (1969) 275 Cal.App.2d 134, 136-137); intentional or negligent infliction of emotional distress (Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at pp. 1208-1211); intentional infliction of emotional distress (Scannell v. Riverside County (1984) 152 Cal.App.3d 596, 608-609); trespass, assault, battery, and conspiracy (Coverstone v. Davies, supra, 38 Cal.2d at p. 322); libel and slander (Cappuccio, Inc. v. Harmon, supra, 208 Cal.App.3d at p. 1502); libel (Kayfetz v. State, supra, 156 Cal.App.3d at pp. 494, 496-499); and intentional and negligent infliction of emotional distress, breach of fiduciary duty, and negligence. (Rosenthal v. Vogt (1991) 229 Cal.App.3d 69, 74-75.) ⁶ Plaintiff does not claim he can allege a cause of action based on conduct unrelated to the initiation or prosecution of defendant's action. (Compare Stearns v. County of Los Angeles, supra, 275 Cal.App.2d at p. 138.) Therefore, plaintiff's proposed causes of action, arising out of the prosecution of defendant's action, are barred. To allow plaintiff to avoid the section 821.6 immunity by denominating his cause of action as one for a tort other than malicious prosecution would be to improperly exalt form and disregard substance. (Scannell v. County of Riverside, supra, 152 Cal.App.3d at p. 609; see Brown v. Franchise Tax Bd. (1987) 197 Cal.App.3d 300, 306.) There was no reasonable possibility plaintiff could avoid the section 821.6 immunity by amendment. Therefore, the trial court could properly exercise its discretion in denying him leave to further amend his first cause of action. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486; Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Cappuccio, Inc. v. Harmon, supra, 208 Cal.App.3d at p. 1502.)

3.        Code of Civil Procedure Section 472d         Plaintiff correctly contends the trial court erred in failing to specify the grounds upon which its demurrer ruling was based as required by Code of Civil Procedure section 472d. (E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504, fn. 2.) However, plaintiff concedes the error is harmless. (Brown v. State (1993) 21 Cal.App.4th 1500, 1506; Wheeler v. County of San Bernardino (1978) 76 Cal.App.3d 841, 846, fn. 3.)

4.        The Appeal from the Order Staying Discovery is Moot         Plaintiff contends the trial court erred procedurally and abused its discretion in granting defendant's ex parte motion for a protective order staying discovery pending a ruling on the school district's demurrer. Plaintiff asserts that if he had access to discovery devices, "he might have had claims against the School Board for interference with prospective economic advantage, defamation, intentional infliction of emotional distress, etc." However, as discussed above, the section 821.6 immunity extends to plaintiff's proposed causes of action. Moreover, because we affirm the judgment of dismissal, the appeal from the discovery order is moot. (Coleman v. Dept. of Personnel Administration (1991) 52 Cal.3d 1102, 1125-1126 [court will not issue advisory opinion]; Blatty v. New York Times Company (1986) 42 Cal.3d 1033, 1048-1049 [judgment of dismissal affirmed, therefore contentions regarding discovery rulings need not be considered]; Doctors' Co. Ins. Services v. Superior Court (Marchand) (1990) 225 Cal.App.3d 1284, 1288, fn. 1 [conclusion medical malpractice action was barred by statutory litigation privilege rendered moot claims concerning discovery issues in same lawsuit]; Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1241 [appeal from discovery order moot because demurrer properly sustained without leave to amend]; cf. County of San Diego v. State of California (1997) 15 Cal.4th 68, 110 [state's attempt to appeal order granting preliminary injunction was moot because final judgment entered]; Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 664 [claim of error concerning the demurrer rendered moot by the summary judgment]; Major v. Miraverde Homeowners Assn., Inc. (1992) 7 Cal.App.4th 618, 623 [appeal from denial of injunction mooted by order sustaining demurrer without leave to amend]; Reid v. State of California (1961) 193 Cal.App.2d 799, 805 [refusal to grant preliminary injunction moot because judgment of dismissal properly entered].)

[End of Part Not Certified for Publication]
IV. DISPOSITION         The judgment of dismissal is affirmed. Defendant, Hacienda La Puente Unified School District, is to recover its costs on appeal from plaintiff, Ronald Hood.
                                

We concur:
        ARMSTRONG, J.
        GODOY PEREZ, J.


* Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III (C).
¹          Plaintiff filed a notice of appeal from the order sustaining the demurrer without leave to amend on January 2, 1997. That order is not appealable. (Code of Civ. Proc., § 904.1; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699; Beazell v. Schrader (1963) 59 Cal.2d 577, 579-580; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695; Parker v. Robert E. McKee, Inc. (1992) 3 Cal.App.4th 512, 514, fn. 1.) On April 15, 1998, plaintiff filed an amended notice of appeal from the judgment of dismissal entered on April 13, 1998. We take judicial notice of the amended notice of appeal and the judgment of dismissal. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) Further, we treat this appeal as from the April 15, 1998, amended notice of appeal. We dismiss the appeal filed on January 2, 1997.
²          All further statutory references are to the Government Code except where otherwise noted.
³          Section 8547.3 provides: "(a) An employee may not directly or indirectly use or attempt to use the official authority or influence of the employee for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any person for the purpose of interfering with the right of that person to disclose to the State Auditor matters within the scope of this article. [¶] (b) For the purpose of subdivision (a), 'use of official authority or influence' includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or taking, or directing others to take, or recommending, processing, or approving, any personnel action, including, but not limited to, appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action. [¶] (c) Any employee who violates subdivision (a) may be liable in an action for civil damages brought against the employee by the offended party. [¶] (d) Nothing in this section shall be construed to authorize an individual to disclose information otherwise prohibited by or under law."
        Section 8547.8, subdivision (c), states in part: "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 state employee or applicant for state employment for having disclosed improper governmental activities shall be liable in an action for damages brought against him or her by the injured party."
⁴          The superior court judge also raised the question whether plaintiff was a state employee as to whom the statutory provisions for reporting governmental activities would apply. On appeal, defendant argues plaintiff was not a state employee. Having concluded plaintiff's cause of action is barred under section 8547.8, subdivision (c), we need not address the state employee question, or any other issue as to the viability of his second cause of action.
⁵          Plaintiff has not urged on appeal his allegation that defendant "lacked authority to institute or prosecute civil actions to recover damages as a governmental entity." In any event, Education Code sections 35160 and 35162 authorized the school district to sue and be sued.
⁶          It is well established that section 821.6 immunity does not extend to false imprisonment and arrest causes of action. (§ 820.4; Asgari v. City of Los Angeles, supra, 15 Cal.4th at pp. 752-753; Sullivan v. Los Angeles County (1974) 12 Cal.3d 710, 719.) However, plaintiff has not asserted such claim or that he can allege such.