Holliday v. City of Buena Park CA4/3

Filed 4/14/14 Holliday v. City of Buena Park CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

STEVE HOLLIDAY et al.,

Plaintiffs and Appellants, G048411

v. (Super. Ct. No. 30-2012-00576718)

CITY OF BUENA PARK, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County,
David T. McEachen, Judge. Affirmed.
Lackie, Dammeier & McGill, Christopher L. Gaspard; Law Office of
Michael A. Morguess and Michael A. Morguess for Plaintiffs and Appellants.
Liebert Cassidy Whitmore, Mark H. Meyerhoff and Connie C. Almond for
Defendant and Respondent.

* * *
 INTRODUCTION
Plaintiffs Steve Holliday and Kevin Shea (plaintiffs) filed a second
amended complaint against defendant City of Buena Park (the City), containing claims
for retaliation in violation of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500
et seq.) and retaliation in violation of Labor Code section 1102.5. The trial court
sustained the City’s demurrer to the complaint on the ground plaintiffs failed to exhaust
internal administrative remedies.
We affirm. As we explain in detail post, and as previously determined by
Federal District Court Judge James V. Selna in a detailed minute order dismissing
plaintiffs’ claims without prejudice, plaintiffs’ claims were subject to the grievance
procedure required by their organizational unit’s governing memorandum of
understanding (the MOU). Plaintiffs did not submit their claims to the grievance
procedure. They did not exhaust their internal administrative remedies or plead any
exception to the exhaustion of internal administrative remedies requirement. Plaintiffs
neither sought leave in the trial court to further amend the second amended complaint,
nor do they seek leave to amend in this court.

BACKGROUND
I.

PLAINTIFFS FILE COMPLAINT IN THE SUPERIOR COURT;
THE ACTION IS REMOVED TO FEDERAL COURT.

In October 2011, plaintiffs filed a complaint against, inter alia, the City in
the superior court, a copy of which is not included in our appellate record. The complaint
contained claims based on both state and federal law. In December 2011, the City
successfully removed the case to the federal district court.

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 II.

PLAINTIFFS FILE A SECOND AMENDED COMPLAINT IN FEDERAL DISTRICT COURT;
SUMMARY OF PLAINTIFFS’ ALLEGATIONS
Plaintiffs filed a second amended complaint in the federal district court (the
federal court complaint), which contained claims for retaliation for exercising their rights
under the First Amendment to the United States Constitution (42 U.S.C. § 1983);
retaliation in violation of the Fair Labor Standards Act of 1938 (29 U.S.C. § 215);
violation of the MMBA; violation of the Public Safety Officers Procedural Bill of Rights
Act (POBRA) (Gov. Code, § 3300 et seq.); violation of Labor Code section 1102; and
violation of Labor Code section 1102.5.
Plaintiffs’ claims were based on the following allegations. Plaintiffs were
both police lieutenants with the City’s police department when they became politically
active in their union, the Buena Park Police Association (Association). The Association
was the recognized bargaining unit for all sworn classifications working in the City’s
police department, with the exception of the position of the chief of police. At some
point in time, certain Association members—apparently “management employees”
within the bargaining unit—determined it would be in their interests to be represented
separately from the rest of the bargaining unit on certain unspecified issues. Plaintiffs,
along with then Captain Sianez and Lieutenants Robin Sells, Rich Forsyth, and Gary
Worrall, were considered management employees.
Plaintiffs opposed efforts to separate the management employees from the
rest of the bargaining unit and sought an election by the Association’s members on the
issue (i.e., plaintiffs supported the “merger”). The federal court complaint alleged that at
that time, Sianez, who aspired to succeed Tom Monson as the chief of police upon his
imminent retirement, “vehemently opposed the merger [of management and
nonmanagement employees for bargaining purposes] and expressed his disdain for such

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action.” According to the federal court complaint, Sianez explained that “merg[ing]”
management employees’ representation with the rank-and-file members of the
Association would make Sianez “look weak to City Hall.” Sianez allegedly stated there
were promotions to the captain position that would be available in the “next few months”
and that it would “not look good” for those who voted to merge.
Plaintiffs further alleged that they disclosed to the Association’s members
that Sianez, in his capacity as the potential chief of police, threatened fellow members of
the Association that he would use his power as chief against them, and that such conduct
presented a potential conflict of interest. At plaintiffs’ urging, the management
employees in the Association voted in favor of merging with the Association for labor
matters. Those in favor of the merger included plaintiffs, Forsyth, and Worrall. Sianez
and Sells voted against it.
Plaintiffs asserted that Sianez thereafter began to treat them differently.
Plaintiffs both pursued a promotion to the rank of captain. They alleged:
Notwithstanding that they were both highly qualified, Holliday was ranked “third” in line
for the promotion and Shea “failed” the process. Sells, who had supported Sianez’s
position on the merger, was promoted to captain by Monson and Sianez. After Worrall
learned that there was another captain position open, he “changed his vote” on the merger
issue to “[e]nsure his promotion to Captain.” Sianez and Monson gave Holliday a “lesser
evaluation”; Sianez told Holliday that Holliday’s labor and political activities were a
reason for the lesser evaluation. Plaintiffs also alleged in the federal court complaint,
they “have taken all necessary steps to perfect this action, including exhausting any and
all appropriate and/or viable administrative remedies. To that end, Plaintiffs ha[ve] filed
a claim for damages pursuant to Cal. Gov’t Code §§ 910, et seq. This claim was
rejected.”

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 III.

ON THE GROUND PLAINTIFFS FAILED TO EXHAUST INTERNAL ADMINISTRATIVE
REMEDIES, THE FEDERAL DISTRICT COURT DISMISSES PLAINTIFFS’ FEDERAL CLAIMS
AND POBRA CLAIM WITH PREJUDICE, AND DISMISSES THE MMBA AND LABOR CODE
VIOLATION CLAIMS WITHOUT PREJUDICE.
In May 2012, the federal district court granted the City, Sianez, and
Monson’s motion to dismiss the federal court complaint. The court dismissed plaintiffs’
First Amendment retaliation claim, Fair Labor Standards Act of 1838 retaliation claim,
and the POBRA claim with prejudice. The court dismissed without prejudice plaintiffs’
claims for violations of the MMBA and Labor Code sections 1102 and 1102.5, on the
ground plaintiffs failed to exhaust the internal administrative remedies articulated in the
MOU between the City and the Association.

IV.

PLAINTIFFS FILE AN AMENDED COMPLAINT IN THE TRIAL COURT; THE
TRIAL COURT SUSTAINS THE CITY’S DEMURRER WITH LEAVE TO AMEND;
PLAINTIFFS FILE A SECOND AMENDED COMPLAINT.
Plaintiffs filed a complaint against the City and a first amended complaint
in the trial court, neither of which is included in our appellate record. The City demurred
to the first amended complaint. The trial court sustained the demurrer as to two causes of
action in the amended complaint (which, according to the respondent’s brief, were
plaintiffs’ claims for retaliation in violation of the MMBA and for violation of Labor
Code section 1102.5), on the ground plaintiffs failed to exhaust their internal
administrative remedies.
The trial court also sustained the demurrer as to the “second cause of
action” (which was for violation of Labor Code section 1102.5, according to the
respondent’s brief), based on plaintiffs’ failure to exhaust external administrative

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remedies. The court’s order provided plaintiffs 10 days’ leave to file a second amended
complaint.
Plaintiffs filed a second amended complaint which contained one cause of
action for retaliation in violation of the MMBA and one cause of action for retaliation in
violation of Labor Code section 1102.5. The second amended complaint contained the
same allegations as in the federal court complaint, as summarized ante.
In addition, the second amended complaint alleged Sianez also told Shea
that he would not give him the necessary approval to attend a prestigious three-month
FBI National Academy program in Virginia unless Shea pledged his absolute loyalty to
Sianez. The second amended complaint also contained allegations addressing the
exhaustion of administrative remedies issue, which were not included in the federal court
complaint. It alleged: “Association President Dave Martinez (‘Martinez’), on behalf of
Plaintiffs, met with Chief Sianez and Deputy City Manager Jim Vanderpool to discuss
the Plaintiffs’ complaints. In or about November or December of 2010, Martinez sent a
city wide email that discussed the impropriety of the promotional process for the Captain
position. Martinez even separately spoke with Mayor Fred Smith, Councilmember Miller
Oh, and Director of Human Resources Eddie Fenton regarding the impropriety of the
promotional process for the Captain position. Mayor Smith told Martinez, ‘there’s
nothing you can do about this.’” The second amended complaint further alleged:
“Plaintiff Holliday on different occasions met with a member of the City Council, City
Manager Rick Warsinski, and Sianez in an attempt to put the City on notice of the
Plaintiffs’ claims and resolve this matter informally. Holliday additionally met with
Warsinski and Sianez several times in vain to voice his concerns. Plaintiff Shea also
discussed Plaintiffs’ complaints with a Councilmember. Plaintiffs were never given any
further direction from the City regarding any further internal remedy, and Defendant
failed to investigate the claims presented by Plaintiffs.”

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 The City filed a demurrer to the second amended complaint, asserting that
the demurrer should be sustained without leave to amend as to both causes of action
because plaintiffs had not exhausted their internal administrative remedies. The City also
asserted the demurrer should be sustained without leave to amend as to the cause of
action for retaliation in violation of Labor Code section 1102.5, on the additional grounds
plaintiffs had not (1) exhausted their external administrative remedies with the California
Labor Commissioner, (2) complied with the claims presentation requirements of the
California Tort Claims Act, and (3) stated facts sufficient to constitute a cause of action
because plaintiffs had not engaged in any protected activity.

V.
THE TRIAL COURT SUSTAINS THE DEMURRER; PLAINTIFFS APPEAL.
The trial court sustained the demurrer to the second amended complaint.
As to the cause of action for retaliation in violation of the MMBA, the demurrer was
sustained without leave to amend. As to the cause of action for retaliation in violation of
Labor Code section 1102.5, the demurrer was sustained with 10 days’ leave to amend.
Plaintiffs did not thereafter file an amended pleading. The court dismissed the action and
entered judgment in favor of the City.
Plaintiffs appealed.

DISCUSSION

I.
STANDARD OF REVIEW
“We independently review the ruling on a demurrer and determine de novo
whether the pleading alleges facts sufficient to state a cause of action. [Citation.] We
assume the truth of the properly pleaded factual allegations, facts that reasonably can be

7
inferred from those expressly pleaded, and matters of which judicial notice has been
taken. [Citation.] We construe the pleading in a reasonable manner and read the
allegations in context. [Citation.] ‘We affirm the judgment if it is correct on any ground
stated in the demurrer, regardless of the trial court’s stated reasons. [Citation.]’
[Citation.]” (Entezampour v. North Orange County Community College Dist. (2010) 190
Cal.App.4th 832, 837.)
“Where a demurrer is sustained without leave to amend, the reviewing
court must determine whether the trial court abused its discretion in doing so. [Citation.]
It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that
the pleading can be cured by amendment. [Citation.] Regardless of whether a request
therefore was made, unless the complaint shows on its face that it is incapable of
amendment, denial of leave to amend constitutes an abuse of discretion. [Citation.] The
burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not
up to the judge to figure that out. [Citation.] Plaintiff can make this showing in the first
instance to the appellate court. [Citation.]” (Roman v. County of Los Angeles (2000) 85
Cal.App.4th 316, 322.)

II.

PLAINTIFFS’ CLAIMS WERE SUBJECT TO THE GRIEVANCE PROCEDURE SET FORTH IN THE
MOU; PLAINTIFFS FAILED TO EXHAUST THEIR INTERNAL ADMINISTRATIVE REMEDIES BY
FAILING TO FOLLOW THE MOU’S GRIEVANCE PROCEDURE.
The City contended in its demurrer that both of plaintiffs’ claims fail
because plaintiffs had not and could not allege they exhausted the internal administrative
remedies set forth in the MOU between the City and the Association. “In general, a party
must exhaust administrative remedies before resorting to the courts. [Citations.] Under
this rule, an administrative remedy is exhausted only upon ‘termination of all available,
nonduplicative administrative review procedures.’” (Coachella Valley Mosquito &

8
Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th
1072, 1080 (Coachella).)
Here, the trial court granted the City’s request that the court take judicial
notice of, inter alia, the MOU in support of the demurrer. Plaintiffs do not challenge the
court’s ruling on the City’s request for judicial notice in this appeal.
The MOU states that “a grievance shall be considered as any matter for
which appeal is not provided for concerning a dispute about the interpretation or
application of any ordinance, rule or regulation governing personnel practices or working
conditions.” Federal District Court Judge Selna, in a detailed order granting the motion
to dismiss the federal court complaint, concluded that the claims at issue fell within the
grievance procedure, stating in part, as follows: “In the first cause of action, Plaintiffs
claim that [the City] violated the MMBA when it failed to promote them and gave
Holliday a lower performance evaluation than he had received previously because of
Plaintiffs’ statements and vote during an Association meeting. . . . Finally, regarding the
third cause of action, California Labor Code section 1102.5 states, in part, that an
employer ‘may not retaliate against an employee for disclosing information to a
government or law enforcement agency,’ where the employee reasonably believes the
information discloses a state or federal law violation. [Citation.] To the extent that
Plaintiffs allege facts to support this claim, Plaintiffs assert that [the City], through its
Police Chief, retaliated against them for disclosing a ‘possible conflict of interest between
the potential chief of police [Sianez] making threats to fellow [A]ssociation members and
using his impending power against them.’. . . [¶] All three causes of action involve an
alleged abuse of power in the Department and constitute a ‘grievance’ within the
meaning of the M[OU]. Central to Plaintiffs’ complaint is the allegation that Si[a]n[e]z,
acting on behalf of [the City], unlawfully abused his power in failing to promote
Holliday.”

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 As Judge Selna explained, the City’s Municipal Code section 2.24.020
provides that: “No one who holds, or who is seeking . . . appointment to any office or
employment in the city shall, directly or indirectly, use, promise, threaten or attempt to
use any office, authority or influence, whether then possessed or merely anticipated, to
. . . aid or obstruct any individual person in securing, or to prevent any individual person
from securing, any position, . . . [or] promotion, . . . upon consideration or condition that
the vote or political influence or action of such person . . . shall be given or used on
behalf of, or withheld from, any candidate, officer or party, or upon any other corrupt
condition or consideration.” Judge Selna noted that section 2.20.150 of the City’s
Municipal Code further provides that “[n]o person in the competitive service system . . .
shall be . . . discriminated against because of political opinions or affiliations.” He
concluded: “Thus, [the City]’s Municipal Code governs Plaintiffs’ claims that they were
discriminated against based on the political opinions they expressed in the Association
meeting. Accordingly, the Department’s failure to abide by [the City]’s Municipal Code
in this personnel matter is a ‘grievance’ within the meaning of the M[OU].”
Judge Selna further stated in his minute order: “Additionally [the City]’s
Personnel Rules and Regulations provide that promotional examinations, ‘shall be
impartial, of a practical nature and shall relate to those subjects which . . . fairly measure
the relative capacities of the persons examined to execute the duties and responsibilities
of the class to which they seek to be appointed.’. . . Thus, [the City]’s Personnel Rules
and Regulations also govern[] Plaintiffs’ allegations regarding the promotion process.
Accordingly, [the City]’s failure to implement these rules and regulations is a ‘grievance’
within the meaning of the M[OU] and must be raised through the Grievance Procedure.
(Compare Lloyd[ v. County of Los Angeles (2009)] 172 Cal.App.4th [320,] 326-27
(finding that county employee was not obligated to exhaust internal administrative
remedy because his whistleblowing claim was not governed by the internal rules on
which the county relied). [¶] In short, Plaintiffs’ allegations in the first [(retaliation in

10
violation of the MMBA)] . . . and fifth [(retaliation in violation of Labor Code
section 1102.5)] causes of action are ‘grievances’ as defined in the M[OU].” (Italics
added, underscoring omitted.)
Judge Selna’s analysis is well founded and we agree that the retaliation in
violation of the MMBA and retaliation in violation of Labor Code section 1102.5 claims
in the second amended complaint, which were based on virtually identical allegations as
those supporting the claims in the federal court complaint before Judge Selna, qualified
as grievances within the meaning of the MOU.
As mentioned in Judge Selna’s order, plaintiffs did not allege in the federal
court complaint that they submitted their claims to the MOU’s grievance procedure and
thus exhausted their internal administrative remedies. Plaintiffs did not allege in their
second amended complaint, nor argue in their appellate briefs, that they have done so.
The second amended complaint does not even mention the MOU’s grievance procedure.
In their opening brief, plaintiffs argue that exhausting their internal administrative
remedies would have been futile. We turn to address that issue.

III.

PLAINTIFFS DID NOT ALLEGE FUTILITY IN EXHAUSTING
THEIR INTERNAL ADMINISTRATIVE REMEDIES.
In their opening brief, plaintiffs argue: “Under the facts pled, it is clear that
[plaintiff]s complained of the adverse actions to the final decision-maker in the grievance
policy—the City Manager—as well as numerous other high-ranking City officials,
including the police chief, to resolve this issue prior to seeking relief from this Court.”
They argue their “complaints fell on deaf ears. [They] also submitted a Government
Claim to the City challenging the actions taken against them. . . . The City rejected that
claim. . . . The City’s demurrer evidenced the fact that the City, to this day, denies that
Plaintiffs were subjected to discrimination and retaliation. Requiring [plaintiff]s to file a

11
formal grievance with their immediate supervisors—after the City’s top officials have
rejected the same claim—would be futile.”
The California Supreme Court has explained: “The doctrine requiring
exhaustion of administrative remedies is subject to exceptions. [Citation.] Under one of
these exceptions, ‘[f]ailure to exhaust administrative remedies is excused if it is clear that
exhaustion would be futile.’ [Citations.] ‘The futility exception requires that the party
invoking the exception “can positively state that the [agency] has declared what its ruling
will be on a particular case.”’ [Citations.]” (Coachella, supra, 35 Cal.4th at
pp. 1080-1081.) “For the futility exception to apply, it is not sufficient that a party can
show what the agency’s ruling would be on a particular issue or defense. Rather, the
party must show what the agency’s ruling would be ‘“on a particular case.” [Citation.]
This follows from the exhaustion doctrine itself, which ‘precludes review of an
intermediate or interlocutory action of an administrative agency.’ (Alta Loma School
Dist. v. San Bernardino County Com. on School Dist. Reorganization (1981) 124
Cal.App.3d 542, 554 . . . ; see also McHugh v. County of Santa Cruz (1973) 33
Cal.App.3d 533, 538-539 . . . [exhaustion doctrine ‘requires that a party must not only
initially raise the issue in the administrative forum, but he must proceed through the
entire proceeding to a final decision on the merits of the entire controversy’].)”
(Coachella, supra, 35 Cal.4th at p. 1081.)
As pointed out by Judge Selna, regarding the federal court complaint,
plaintiffs “broadly assert that they ‘have taken all necessary step[s] to perfect this action,
including exhausting any and all appropriate and/or viable administrative remedies’” and
“suggest that they perfected their MMBA [claim] by filing a claim for damages pursuant
to California Government Code section 910 et seq. and they assert that ‘there are no other
appropriate and/or viable administrative remedies to exhaust.’. . .” Judge Selna observed
such assertions were insufficient to allege that plaintiffs utilized the grievance procedure,

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or why, if at all, their claims could bypass the grievance procedure. He also noted
plaintiffs did not plead any facts showing why the grievance procedure was not viable.
Plaintiffs contend their new allegations in the second amended complaint
show that submitting their claims to the City’s grievance procedure would have been
futile. But, as discussed ante, in order to show that exhausting the internal administrative
remedies would be futile, plaintiffs must be able to “‘“positively state that the [agency]
has declared what its ruling will be on a particular case.”’ [Citations.]” (Coachella,
supra, 35 Cal.4th at pp. 1080-1081.) While the second amended complaint alleged that
plaintiffs directly and through the Association’s president “discussed” their complaints
with various individuals including Sianez, there is no allegation regarding the timing or
substance of those conversations, much less an allegation that anyone with authority
under the MOU rejected any grievance by plaintiffs.
Most significantly, the allegations of plaintiffs’ communications do not
match the required steps clearly set forth in the MOU, especially grievances to the City’s
manager. The grievance procedure in the MOU states as follows: “Whenever an
employee feels that the policy of the City is not being appropriately applied to his
circumstances, he/she shall take the following action: [¶] A. The dispute should be
discussed fully with the employee’s most immediate supervisor, who should make every
effort to dispose of said dispute in a fair and equitable manner and in accordance with
established policy of the City. After the employee and the supervisor have discussed the
incident, the supervisor will give the employee a verbal or written response within two
(2) working days. [¶] B. The process enunciated in Number A shall continue through the
line of supervision, up to and including the Department Head, if the aggrieved party is
not satisfied with the resolution at the initial or preceding step(s). [¶] C. Should the
dispute not be resolved by the Department Head to the satisfaction of both parties, the
employee will notify the Human Resources Manager of the dispute. The Human
Resources Manager may interview both parties in the dispute and others affected and

13
report those findings to the City Manager and recommend steps to be taken to resolve the
problem within the Department. Within the (10) working shifts, the parties will be
provided with a written response from the City Manager, which is binding and not
subject to appeal pursuant to Section 2-86 of the Administrative Section of the City
1
Code.”
Had plaintiffs submitted their claims to the grievance procedure, they
would have ultimately received a written response from the City’s manager regarding the
resolution of their complaints. There is no allegation in the second amended complaint
that the City’s manager, the human resources manager, or any other individual identified
in the grievance procedure other than Sianez himself, communicated, directly or
indirectly, any kind of decision regarding plaintiffs’ claims. Although plaintiffs allege in
the second amended complaint that the City’s mayor told the Association’s president,
Martinez, that “there’s nothing you can do about this,” the mayor does not have a role in
the MOU’s grievance procedure or in connection with the ultimate resolution of
plaintiffs’ claims. The mayor’s opinion about whatever claims Martinez described to him
(the second amended complaint does not allege the substance of Martinez’s conversations

1
Citing the California Practice Guide on Employment Litigation, plaintiffs also
argue they were not required to exhaust any internal administrative remedies before filing
their lawsuit because the MOU’s grievance procedure did not contain a “quasi-judicial
proceeding.” (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter
Group 2013) ¶ 16:372.7, p. 16-60 (rev. # 1, 2013).) But the California Practice Guide
defines “‘quasi-judicial proceeding’” as involving “i.e., one in which the employees have
adequate notice and opportunity to appear and present evidence supporting their claims.”
(Ibid.) The express language of the grievance procedure shows that plaintiffs would have
had the opportunity to be heard and present any evidence supporting their claims. There
are no allegations in the second amended complaint showing otherwise. Plaintiffs,
therefore, have failed to assert allegations or cite legal authority supporting their position
that they should be excused from exhausting internal administrative remedies because the
MOU’s grievance procedure was insufficiently “quasi-judicial.”

14
with the mayor) is irrelevant to the issue of whether plaintiffs pleaded facts showing
futility. Similarly, allegations regarding plaintiffs’ and Martinez’s conversations with the
City’s council members, who also do not have any role in the grievance procedure or
ultimate resolution of plaintiffs’ claims, are similarly irrelevant to show the futility of
plaintiffs submitting their claims to the grievance procedure.
Because plaintiffs failed to allege facts supporting the futility exception to
the requirement they exhaust their internal administrative remedies under the MOU, the
trial court properly sustained the City’s demurrer. The second amended complaint does
not mention the MOU, much less address issues concerning its legal import. Apparently,
plaintiffs have always based their case on the tactical strategy that their claims were not
grievances under the MOU. Accordingly, plaintiffs have consistently ignored the
existence of the MOU and its grievance procedure in their many complaints. But the
federal district court and the state courts have found that plaintiffs’ claims were
grievances under the MOU and plaintiffs’ position to the contrary is without merit. The
law favors enforcement of the MOU and the procedures set forth therein. Plaintiffs have
pleaded neither that they complied with the MOU nor any excuse for not doing so. Quite
simply, the City is entitled to rely on the procedures set forth in the MOU, and all parties
are bound by it.
Plaintiffs have not requested leave to amend either in their appellate briefs
or at oral argument, and have not explained how they might amend the second amended
complaint to survive demurrer. We therefore do not reach the trial court’s other bases for
sustaining the demurrer.

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 DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

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