Filed 8/27/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
AARON MACDONALD, C069646
Plaintiff and Appellant, (Super. Ct. No. 39-2011-
00259201-CU-WT-STK)
v.
STATE OF CALIFORNIA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Joaquin County,
Barbara A. Kronlund, Judge. Affirmed.
Corren & Corren and Adam Blair Corren for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Senior Assistant
Attorney General, Scott H. Wyckoff, Supervising Deputy Attorney General and Mark J.
Tamblyn, Deputy Attorney General, for Defendant and Respondent State of California.
Diane Boyer-Vine, Legislative Counsel, Robert A. Pratt, Principal Deputy
Legislative Counsel; Renne Sloan Holtzman Sakai, Timothy G. Yeung and Erich W.
Shriners for Defendant and Respondent California State Assembly.
1
The issue presented by this appeal is whether an employee must exhaust the
administrative remedy set forth in Labor Code section 98.71 before filing suit in superior
court for retaliatory discharge in violation of sections 1102.5 and 6310. We shall
conclude that under the rule of exhaustion announced in Abelleira v. District Court of
Appeal (1941) 17 Cal.2d 280, 292 (Abelleira), and reaffirmed in Campbell v. Regents of
University of California (2005) 35 Cal.4th 311, 321 (Campbell), exhaustion is required.
We shall therefore affirm the judgments entered in defendants‟ favor after the trial court
sustained defendants‟ demurrers without leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
According to the operative first amended complaint, plaintiff Aaron MacDonald
was hired by defendants State of California (State) and California State Assembly
(Assembly) to work at one of defendants‟ offices in San Joaquin County. Several months
later, plaintiff complained to supervisors Michael Quattrocioochi, Evan Oneto, and Linda
Hansma that Quattrocioochi “was illegally and/or inappropriately smoking at the
Defendants‟ office where Plaintiff worked in violation of California Labor Code § 6404.5
and California Government Code § 7597.”2 Hansma informed plaintiff that “these
smoking issues were a serious . . . problem [and] would be addressed . . . .” Less than
two weeks later, plaintiff was fired.
Plaintiff‟s first amended complaint sets forth two causes of action: (1) retaliatory
discharge in violation of section 1102.5; and (2) retaliatory and discriminatory discharge
in violation of section 6310. The Assembly demurred to the first amended complaint,
1 Further unspecified statutory references are to the Labor Code.
2 Section 6404.5, subdivision (b), prohibits the smoking of tobacco products in
enclosed places of employment. Government Code section 7597, subdivision (a),
prohibits smoking in a public building, or outside of a public building within 20 feet of its
entrance or exit.
2
arguing the trial court lacked jurisdiction over the causes of action alleged therein
because plaintiff failed to exhaust his administrative remedies as required by Campbell,
supra, 35 Cal.4th 311. (Code Civ. Proc., § 430.10, subd. (a).) The Assembly also
asserted that because plaintiff failed to exhaust his administrative remedies, his causes of
action failed to state facts sufficient to constitute a cause of action. (Id., subd. (e).) The
State separately demurred, claiming plaintiff failed to state facts sufficient to constitute a
cause of action by failing “to plead facts that support an employment relationship with
the State . . . .” The trial court sustained both demurrers without leave to amend. Relying
on Lund v. Leprino Foods Co. (E.D.Cal. June 20, 2007, No. CIV. S-06-0431 WBS KJM)
2007 U.S.Dist. Lexis 46705, which in turn relies on Campbell, the trial court found that
plaintiff was required to exhaust the administrative remedy set forth in section 98.7
before pursuing his statutory claims in court, and that his causes of action for violations
of sections 1102.5 and 6310 must be dismissed for failure to previously file a complaint
with the Labor Commissioner. With respect to the State‟s demurrer, the court found that
plaintiff‟s allegations were insufficient to show that the State employed plaintiff.
Judgments were entered in defendants‟ favor, and the matter was dismissed.
Plaintiff appeals both judgments.
DISCUSSION
Plaintiff contends the trial court erred in sustaining the Assembly‟s demurrer
because “California law makes clear” that he was not required to exhaust the
administrative remedy set forth in section 98.7 before pursuing his causes of action in
court. In support of his contention, plaintiff relies on Lloyd v. County of Los Angeles
(2009) 172 Cal.App.4th 320, 323 (Lloyd), in which a division of the Second Appellate
District held that “[t]here is no requirement that a plaintiff pursue the Labor Code
administrative procedure prior to pursuing a statutory cause of action.” As we shall
explain, in reaching that holding, Lloyd failed to distinguish Campbell, supra, 35 Cal.4th
at page 321, which reaffirmed that “ „the rule is that where an administrative remedy is
3
provided by statute, relief must be sought from the administrative body and this remedy
exhausted before the courts will act.‟ ” Because we find Campbell controlling, we
decline to follow Lloyd, and conclude that the trial court properly sustained the
Assembly‟s demurrer to the first amended complaint without leave to amend. Because
plaintiff was required to exhaust his administrative remedies before pursuing his causes
of action against both the Assembly and the State, plaintiff‟s action against the State is
likewise barred, and judgment of dismissal was properly entered in the State‟s favor on
that basis as well.
A demurrer tests the sufficiency of a complaint. (Los Altos El Granada Investors
v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) 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. (Ibid.) In reviewing the complaint, we must assume the truth of all
facts properly pleaded by the plaintiff. (Ibid.) Upon reviewing a judgment of dismissal
following the sustenance of a demurrer, the reviewing court may affirm “on any grounds
stated in the demurrer, whether or not the [lower] court acted on that ground.” (Carman
v. Alvord (1982) 31 Cal.3d 318, 324 (Carman); see also Coker v. JP Morgan Chase
Bank, N.A. (2013) 218 Cal.App.4th 1, 7.) Where, as here, a trial court sustains a
demurrer alleging that the plaintiff failed to state facts sufficient to constitute a cause of
action, we must affirm the judgment of dismissal if the complaint, for any reason, fails to
state a cause of action. (Carman, supra, at p. 324.) And when, as here, the demurrer has
been sustained without leave to amend, we decide whether there is a reasonable
possibility 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.
(Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
“[S]ection 1102.5 is a whistleblower statute, the purpose of which is to
„encourag[e] workplace whistle-blowers to report unlawful acts without fearing
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retaliation.‟ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
287.) The subdivision relevant to this case states: “An employer may not retaliate
against an employee for disclosing information to a government or law enforcement
agency, where the employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation or noncompliance with a
state or federal rule or regulation.” (§ 1102.5, subd. (b).)
Section 6310 subdivision (a) provides in pertinent part: “No person shall
discharge or in any manner discriminate against any employee because the employee has
done any of the following: [¶] (1) Made any oral or written complaint to the division,
other governmental agencies having statutory responsibility for or assisting the division
with reference to employee safety or health, his or her employer, or his or her
representative.”
Although sections 1102.5 and 6310 are silent regarding administrative remedies,
section 98.7, subdivision (a), provides in pertinent part: “Any person who believes that
he or she has been discharged or otherwise discriminated against in violation of any law
under the jurisdiction of the Labor Commissioner may file a complaint with the division
within six months after the occurrence of the violation.”3 Section 98.7 outlines a process
of investigation and decision by the Labor Commissioner. (Id., subds. (b)-(e).)
Subdivision (f) of that section states: “The rights and remedies provided by this section
do not preclude an employee from pursuing any other rights and remedies under any
other law.” (Id., subd. (f).) Moreover, section 6312 provides: “Any employee who
believes that he or she has been discharged or otherwise discriminated against by any
person in violation of Section 6310 or 6311 may file a complaint with the Labor
Commissioner pursuant to Section 98.7.”
3 Sections 1102.5 and 6310 are under the jurisdiction of the Labor Commissioner.
(§§ 98.6, subd. (a), 6312.)
5
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.‟ ” (Campbell, supra, 35 Cal.4th at p. 321, quoting Abelleira,
supra, 17 Cal.2d at p. 292.) This is so even where the administrative remedy is couched
in permissive, as opposed to mandatory, language. (See Williams v. Housing Authority of
Los Angeles (2004) 121 Cal.App.4th 708, 734.) Here, an administrative remedy is
provided in section 98.7. Thus, in accordance with Campbell, we conclude that plaintiff
was required to exhaust that remedy prior to pursuing the underlying action.
Plaintiff urges us to follow Lloyd, supra, 172 Cal.App.4th at pages 323 and 331, in
which the court held that “[t]here is no requirement that a plaintiff pursue the Labor Code
administrative procedure prior to pursuing a statutory cause of action,” and that section
98.7 “merely provides the employee with an additional remedy, which the employee may
choose to pursue.” For reasons already discussed, we do not believe this interpretation is
correct.4 Moreover, Lloyd inexplicably fails to mention Campbell in its analysis, and the
4 To date, no published California decision has cited Lloyd for the proposition that an
employee need not pursue the Labor Code administrative procedure prior to pursuing a
statutory cause of action, and the majority of federal district courts have agreed that under
Campbell, a plaintiff alleging a violation of section 1102.5 is required to allege
exhaustion of administrative remedies with the Labor Commissioner before bringing suit.
(See, e.g., Kennedy v. Kings Mosquito Abatement Dist. (E.D.Cal. Mar. 18, 2013, No.
1:12-cv-1458 AWI MJS) 2013 U.S.Dist. Lexis 37261, *40; Miller v. Southwest Airlines,
Co. (N.D.Cal. Feb. 12, 2013, No. C 12-03482 WHA) 2013 U.S.Dist. Lexis 18835, *6-*7;
Papillon v. San Francisco Unified Sch. Dist. (N.D.Cal. Oct. 12, 2012, No. C 12-01847
LB) 2012 U.S.Dist. Lexis 147470, *16-*19; Wright v. Kaiser Found. Hosps. (N.D.Cal.
Sept. 17, 2012, No. C 12-00663 WHA) 2012 U.S.Dist. Lexis 132459, *6; Brazill v. Cal.
Northstate College of Pharm., LLC (E.D.Cal. Aug. 2, 2012, No. Civ. 2:12-1218 WBS
GGH) 2012 U.S.Dist. Lexis 108554, *14-*16; Casissa v. First Republic Bank (N.D.Cal.
July 24, 2013, Nos. C 09-4129 CW & C 09-4130 CW) 2012 U.S.Dist. Lexis 103206,
*22-*24; Morrow v. City of Oakland (N.D.Cal. June 12, 2012, No. C 11-02351 LB) 2012
U.S.Dist. Lexis 81318, *60-*63; Toth v. Guardian Indus. Corp. (E.D.Cal. Mar. 29, 2012,
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cases which it does cite -- Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39; Murray v.
Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338 -- antedate Campbell.5
(Lloyd, supra, 172 Cal.App.4th at pp. 323, 331-332.)
We reject plaintiff‟s suggestion that Campbell’s holding is limited to cases
involving “internal administrative remedies.” In Campbell, the issue was “whether an
employee of the Regents of the University of California (the Regents) must exhaust
No. 1:12-CV-0001 LJO DLB) 2012 U.S.Dist. Lexis 44217, *8-*14; Hanford Exec.
Mgmt. Emple. Ass’n v. City of Hanford (E.D.Cal. Feb. 23, 2012, No. 1:11-cv-00828-
AWI-DLB) 2012 U.S.Dist. Lexis 23161, *58-*59; Dolis v. Bleum USA, Inc. (N.D.Cal.
Sept. 28, 2011, No. C11-2713 TEH) 2011 U.S.Dist. Lexis 110575, *5-*6; Ferretti v.
Pfizer Inc. (N.D.Cal. 2012) 855 F.Supp.2d 1017, 1022-1024; Reynolds v. City & County
of San Francisco (N.D.Cal. Oct. 11, 2011, No. C 09-0301 RS) 2011 U.S.Dist. Lexis
117230, *4-*5; Chacon v. Hous. Auth. (E.D.Cal. June 29, 2011, No. 1:10-cv-2416 AWI
GSA) 2011 U.S.Dist. Lexis 69637, *12-*14; Cartwright v. Regents of the Univ. of Cal.
(E.D.Cal. July 22, 2009, No. 2:05-cv-02439-MCE-KJM) 2009 U.S.Dist. Lexis 62953,
*21-*22; Lund v. Leprino Foods Company, supra, 2007 U.S.Dist. Lexis 46705, at p. *12;
but see Dowell v. Contra Costa County (N.D.Cal. Mar. 1, 2013, No. 3:12-cv-05743-JCS)
2013 U.S.Dist. Lexis 28526, *32-*35; Turner v. City & County of San Francisco
(N.D.Cal. Aug. 29, 2012, No. C-11-1427 EMC) 2012 U.S.Dist. Lexis 123161, *23-*24;
Mango v. City of Maywood (C.D.Cal. Oct. 5, 2012, No. CV 11-5641-GW(FFMx)) 2012
U.S.Dist. Lexis 150929, *41; Creighton v. City of Livingston (E.D.Cal. Oct. 7, 2009, No.
CV-F-08-1507 OWW/SMS) 2009 U.S.Dist. Lexis 93720, *33-*34.)
5 Contrary to plaintiff‟s assertion, Lloyd does not “include the Campbell case in its
analysis . . . .” Lloyd’s lone reference to Campbell is as follows: “Citing the rule of
exhaustion of administrative remedies (Abelleira v. District Court of Appeal (1941) 17
Cal.2d 280, 292 [109 P.2d 942]; Campbell v. Regents of University of California (2005)
35 Cal.4th 311, 321 [25 Cal.Rptr.3d 320, 106 P.3d 976]), the County contends Lloyd was
obligated to pursue internal administrative remedies pursuant to the County‟s civil
service rules, and his failure to exhaust bars his entire action.” (Lloyd, supra, 172
Cal.App.4th at pp. 326-327.) Lloyd does not mention Campbell in its analysis of that
issue, concluding instead that “[t]he County‟s argument is meritless because Lloyd‟s
claim he suffered discrimination based on whistleblowing is not governed by the internal
rules on which the County relies.” (Lloyd, supra, at p. 327.) Nor does it mention it in its
analysis of the issue relevant here -- whether the plaintiff was required to exhaust the
administrative remedy set forth in section 98.7 before pursuing his causes of action for
statutory violations of the Labor Code. (Lloyd, supra, at pp. 331-332.)
7
university internal administrative remedies before filing suit in superior court for
retaliatory termination under either Government Code section 12653, subdivision (c), or
Labor Code section 1102.5, sometimes called the „whistleblower‟ statutes.” (Campbell,
supra, 35 Cal.4th at p. 317.) The court began its analysis with a discussion of the
Regents‟ constitutional authority, and concluded that “[t]he Regents may create a policy
for handling whistleblower claims under their power to organize and govern the
University,” and “[s]uch a policy is treated as a statute in order to determine whether the
exhaustion doctrine applies.” (Id. at p. 321, italics added.) Next, the court discussed the
rule of exhaustion of administrative remedies: “ „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.‟ ” (Ibid., italics
added, quoting Abelleira, supra, 17 Cal.2d at p. 292.) Having concluded that the
university‟s internal administrative procedures were equivalent to a statute, the court held
that the employee was subject to the rule of exhaustion. (Campbell, supra, 35 Cal.4th at
p. 324.) The court explained: “The present action involves a policy the Regents
established to handle complaints of retaliatory dismissal for whistleblowing in an orderly
manner. Because we may treat such a policy as equivalent to a statute in this action, and
because that policy required Campbell to resort initially to internal grievance practices
and procedures, Campbell had an administrative remedy within the meaning of Abelleira
and its progeny.” (Ibid.) Thus, contrary to plaintiff‟s assertion, Campbell’s holding is
not limited to cases involving internal administrative remedies; rather, it extends to
situations “ „where an administrative remedy is provided by statute . . . .‟ ” (Id. at p. 321,
quoting Abelleira, supra, 17 Cal.2d at p. 292.)
Plaintiff also argues we need not follow Campbell because “the Campbell court
never addressed nor analyzed California Labor Code section 98.7 . . . .” While Campbell
does not specifically mention section 98.7, it held that “[t]he context of Labor Code
section 1105, as well as the past 60 years of California law on administrative remedies,
8
argues against its abrogating the exhaustion requirement.” (Campbell, supra, 35 Cal.4th
at 329.) In any event, the salient point is that Campbell’s holding encompasses
situations, such as this, where an administrative remedy is provided by statute.
Because the administrative remedy at issue here is provided by statute, Campbell
controls, and plaintiff was required to exhaust that remedy before pursuing the underlying
action. Because he failed to do so, his claims are barred, and the trial court properly
sustained the Assembly‟s demurrer to the first amended complaint. The judgment
entered in favor of the State is properly sustained on this basis as well. (See Carman,
supra, 31 Cal.3d at p. 324 [where a demurrer alleges the plaintiff failed to state facts
sufficient to constitute a cause of action, the reviewing court must affirm the judgment of
dismissal if the complaint, for any reason, fails to state a cause of action].) Accordingly,
we need not consider plaintiff‟s contention that the trial court erred in sustaining the
State‟s demurrer on the ground plaintiff failed to allege facts sufficient to demonstrate the
State was plaintiff‟s employer.
DISPOSITION
The judgments are affirmed. Defendants shall recover their costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(1), (2).)
BLEASE , Acting P. J.
We concur:
HULL , J.
BUTZ , J.
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