The opinion
Filed 3/14/16 Bazua v. City of Montebello CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JOSE BAZUA, B257628
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC488330)
v.
CITY OF MONTEBELLO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michelle R. Rosenblatt, Judge. Reversed with directions.
Alexander Krakow + Glick, J. Bernard Alexander III and Tracy L. Fehr for
Plaintiff and Appellant.
Liebert Cassidy Whitmore, Geoffrey S. Sheldon and Jennifer M. Rosner for
Defendant and Respondent.
_____________________________
INTRODUCTION
Jose Bazua sued his former employer, the City of Montebello, alleging that the
city fired him in retaliation for complaining about the city’s misuse of federal housing
funds provided by the United States Department of Housing and Urban Development
(HUD). Bazua alleged causes of action for violation of Labor Code section 1102.5,
which prohibits an employer from retaliating against an employee for engaging in certain
whistleblower activities, and for defamation, and sought penalties under the Labor Code
Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). The trial
court sustained Montebello’s demurrer to Bazua’s Labor Code section 1102.5 cause of
action without leave to amend because the court ruled Bazua had failed to exhaust his
administrative and judicial remedies, granted Montebello’s motion to strike Bazua’s
PAGA claim, and later granted Montebello’s motion for summary judgment on the
remaining defamation cause of action and for summary adjudication on particular issues.
Bazua challenges each of these rulings.
We conclude that Montebello’s post-termination appeal procedure was an
inadequate administrative remedy because it failed to provide a clearly defined procedure
for resolving disputes, including an evidentiary hearing. Therefore, Bazua did not have
to exhaust the procedure, and the exhaustion of judicial remedies doctrine did not apply
because there was no quasi-judicial administrative decision for Bazua to challenge in
court. We also conclude that, although the trial court did not err in striking Bazua’s
PAGA claim, the court erred in granting Montebello’s motion for summary judgment on
Bazua’s defamation cause of action and for summary adjudication of issues.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
1. Bazua’s Employment With Montebello
According to the allegations of the operative first amended complaint, which we
accept as true for purposes of reviewing the trial court’s order sustaining Montebello’s
demurrer,1 Bazua began working for Montebello as an administrative analyst in 1996.
He rose through several promotions to become the Acting Director of Economic
Development in July 2008, and the Director of Economic Development in March 2009.
Bazua then began his fall. In January 2010 Montebello demoted Bazua to Economic
Development Manager. On January 6, 2011 Montebello placed Bazua on administrative
leave, and on September 15, 2011 Montebello terminated his employment.
2. The Redevelopment Project and HUD Funds
On March 12, 2008 Montebello entered into an Exclusive Negotiation Agreement
with Ku and Associates, a developer, for a project. On May 22, 2008 Michael Huntley,
Montebello’s Director of Community Development, directed the city attorney, Arnold
Alvarez-Glasman of Alvarez-Glasman & Colvin, to prepare a draft Owner Participation
Agreement (OPA). On June 25, 2008 the city council approved a resolution designating
$1.3 million in federal HOME program funds for the project and authorizing an escrow
account to hold the funds.2 On July 2, 2008 Montebello issued a check for $1.3 million
1 Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524, 528.
2 The HOME Investment Partnership Act (HOME), Title 42 United States Code
section 12701 et seq., “provides federal housing funds directly to participating
jurisdictions. The jurisdictions disburse those funds in the form of loans and grants ‘to
provide incentives to develop and support affordable rental housing and home ownership
affordability.’” (Oti Kaga, Inc. v. South Dakota Housing Development Authority (8th
Cir. 2003) 342 F.3d 871, 875, quoting 42 U.S.C. § 12742(a)(1).)
3
in HUD funds to the escrow account. According to Bazua, this disbursement of funds
violated HUD regulations because it occurred before there was a signed OPA between
Montebello and Ku and Associates.
After he became Acting Director of Economic Development in July 2008, Bazua
discovered the improper disbursement of HUD funds and reported the matter to the city
administrator and to Alvarez-Glasman. Alvarez-Glasman decided to prepare something
called a HOME Program Loan Agreement in lieu of an OPA.
On February 10, 2009 Montebello entered into a HOME Program Loan
Agreement with Ku and Associates. Alvarez-Glasman and Matthew Gorman, an attorney
in Alvarez-Glasman’s law firm, advised Bazua that the agreement was an acceptable
substitute for an OPA. Another lawyer in Alvarez-Glasman’s law firm, Roger Colvin,
prepared and advised Bazua “regarding creation of the OPA.”
In January 2010 the Economic Development Department became a division of
Community Development under Huntley as Director of Planning and Development. This
change placed Bazua under Huntley.
3. The Inspector General’s Audit and the Internal Investigation
In July 2010 HUD’s Office of Inspector General conducted an audit and
discovered that someone in Montebello had given HUD an OPA dated March 14, 2008
with fraudulent signatures. Montebello accused Bazua of creating the fraudulent OPA.
On January 6, 2011 Montebello placed Bazua on administrative leave. Bazua
subsequently filed a complaint with the California State Controller claiming that Huntley
was responsible for the alleged misuse of redevelopment funds.
Montebello hired a private investigative firm, RCS Investigations and Consulting
LLC, to investigate the fraud. On January 19, 2011 RCS interviewed Bazua about the
release of the $1.3 million in HUD funds and the HUD investigation. Bazua provided
RCS with substantial documentation, including documents drafted by Alvarez-Glasman
and Gorman and memoranda among various Montebello officials. RCS presented its
conclusions to Montebello in a written report.
4
4. Montebello’s Pre-Termination Hearings and the Termination
of Bazua’s Employment
On May 31, 2011 Montebello sent Bazua a notice of intent to terminate his
employment, signed by Huntley. Montebello accused Bazua, among other things, of
falsifying and concealing the fraudulent OPA and other records, willfully concealing
information, misappropriation, and incompetence, all of which, according to Bazua,
occurred while Huntley was in charge. The notice informed Bazua of his right to respond
orally before the city administrator’s designee, David Biggs. On July 11, 2011 Bazua
appeared before Biggs and gave Biggs the documents he had given to RCS.
On September 8, 2011 Montebello sent Bazua an amended notice of intent to
terminate, also signed by Huntley. The amended notice accused Bazua of 31 additional
violations. On September 15, 2011 Bazua again appeared before Biggs and again
submitted documents. Promptly after the second hearing Biggs notified Bazua of the
termination of his employment.
5. Montebello’s Proposed Post-Termination Hearing
Montebello’s Administrative Policy V-B-40, which applied to Bazua, provided for
a post-termination review by the city administrator. This policy stated, in relevant part:
“If discipline is imposed against any unclassified management employee, the exclusive
method of review of same shall be as follows: Such employee may, within ten (10) days
of the notification of the imposition of such discipline, request, in writing, a review of the
action by the City Administrator. The City Administrator shall review such facts as he
determines are appropriate and shall advise such management employee, informally, of
the result of his review and his decision. The decision of the City Administrator shall be
final and conclusive.”
On September 23, 2011 Bazua requested a hearing to review the decision to
terminate his employment. He also requested a description of the procedure and format
of the hearing.
5
On September 27, 2011 Montebello’s Director of Human Resources informed
Bazua that Colvin would serve as the “judge” in the hearing. Bazua objected, stating that
Colvin was Alvarez-Glasman’s law partner and had advised Bazua regarding the creation
of an OPA. Bazua stated that Colvin could not act as a neutral factfinder, and that the
proposed hearing was inconsistent with Administrative Policy V-B-40.
On October 31, 2011 the Director of Human Resources responded to Bazua
stating, “Administrative Policy V-B-40 does not provide specific details about an
unclassified employee’s right to an evidentiary hearing if discipline is imposed.” The
letter also stated that, consistent with its past practice, Montebello would provide Bazua
an evidentiary hearing that included the opportunity to cross-examine witnesses and
Montebello would bear the burden of proof to justify his termination. Bazua declined to
participate in the proposed hearing because, among other reasons, the newly-proposed
procedure did not appear in any written policy, Bazua’s participation in such a hearing
would been futile, and the HUD fraud allegations permeated the entire city government.
Bazua filed this action on July 12, 2012.
B. Trial Court Proceedings
1. Bazua’s First Amended Complaint and Montebello’s Demurrer
and Motion To Strike
Bazua’s first amended complaint against Montebello alleged causes of action for
violation of Labor Code section 1102.5, which included a claim for monetary penalties
under PAGA, and defamation.3 Bazua alleged that, before he became Acting Director of
3 The trial court had sustained Montebello’s demurrer to the Labor Code
section 1102.5 cause of action in Bazua’s original complaint with leave to amend and
overruled Montebello’s demurrer to Bazua’s defamation cause of action. The court had
also granted Montebello’s motion to strike the PAGA claim in Bazua’s original
complaint, with leave to amend to allege a proper representative PAGA claim on behalf
of Bazua and other current or former employees.
6
Economic Development, Montebello improperly disbursed HUD funds without the
required OPA. Bazua alleged that upon discovering this impropriety he promptly
notified the city administrator and the city attorney. Bazua alleged that Montebello
terminated his employment in retaliation for complaining about the city’s mishandling
and improper use of HUD funds and Huntley’s improper use of redevelopment funds.
Bazua also alleged that Montebello had made false accusations and other defamatory
statements about him to third parties and to the public.
Bazua alleged that the post-termination evidentiary hearing proposed by the
Director of Human Resources on October 31, 2011 was not an established procedure, was
created solely for Bazua’s termination, and was patently inadequate. Bazua also alleged
that it would have been futile for him to participate in the proposed hearing because he
had already participated in two prior pre-termination hearings before Biggs and had
provided evidence to Montebello’s investigators prior to his termination, Colvin was
biased, and Huntley had mishandled the HUD funds and initiated the biased investigation
of Bazua. Bazua alleged that Montebello’s entire city administration was biased against
him and could not provide a fair and impartial hearing.
Montebello demurred to the first amended complaint, arguing that by abandoning
the administrative appeal of his termination Bazua had failed to exhaust his
administrative remedies. Montebello also argued that Bazua had failed to exhaust his
judicial remedies because he never challenged the city’s procedures or decision by filing
a petition for a writ of administrative mandamus. Montebello also moved to strike
Bazua’s PAGA claim, arguing that Bazua had not alleged a representative PAGA claim
on behalf of himself and other current or former employees.
Bazua argued in opposition to the demurrer that it would have been futile for him
to exhaust the administrative remedy offered to him for several reasons, including that
Colvin was “the attorney who advised [Bazua] to engage in the conduct which caused
[his] termination” and “was clearly a biased decisionmaker.” He also argued that the
administrative remedy provided by Administrative Policy V-B-40 was unclear and
inadequate.
7
The trial court sustained Montebello’s demurrer to Bazua’s cause of action for
violation of Labor Code section 1102.5 without leave to amend, based on Bazua’s failure
to exhaust his administrative and judicial remedies. The court also granted Montebello’s
motion to strike the PAGA claim, ruling that Bazua was seeking only individual relief
and had failed to allege any basis for a representative claim, as required by PAGA.
2. Montebello’s Motion for Summary Judgment or Summary
Adjudication
Montebello filed a motion for summary judgment on Bazua’s remaining cause of
action for defamation, arguing that Bazua’s failure to exhaust his administrative remedies
barred his defamation cause of action. Montebello also moved in the alternative for
summary adjudication of issues with respect to 11 specific statements Bazua claimed
were defamatory, labeling them “Plaintiff’s Alleged Defamatory Statement Number[s]” 1
through 11. Montebello argued that there was no evidence of any specific defamatory
statement by a city employee (for Alleged Defamatory Statement Nos. 2, 3, 4, 5, 6, and
7), statements made by Bazua to third parties were not actionable (Alleged Defamatory
Statement Nos. 9 and 10), one of the statements was not published to third parties
(Alleged Defamatory Statement No. 11), Bazua did not suffer any injury, the alleged
defamatory statements were protected by the common interest privilege, and Montebello
was immune from liability under Government Code sections 815.2, 818.8, and 822.2.
Bazua argued in opposition to the motion that the exhaustion requirement did not
apply to his defamation cause of action and the alleged defamatory statements were
sufficiently specific. He also argued that Montebello was responsible for any foreseeable
repetition of the defamatory statements to third parties, including Bazua’s repetition of
the statements in employment interviews. Bazua argued that he did not have to prove any
economic injury and that, in any event, he had suffered economic injury in the form of his
inability to find new employment, as well as mental anguish. Bazua also argued that the
defamatory statements were not privileged and Montebello was not immune from
liability.
8
The trial court granted Montebello’s motion for summary judgment. The court
ruled that Bazua’s failure to exhaust his administrative remedies by challenging his
termination in a post-termination hearing precluded any claim, including his defamation
claim, based on the merits of his termination or the reasons for his termination. The court
stated that, in order “to prove his defamation claim, [Bazua] would necessarily have to
challenge his termination,” and that had he “utilized his administrative remedies and
proved his termination wrongful, he may pursue a defamation claim for damages
attributed to statements stemming from the wrongful reason for his termination.” The
court concluded that, by “foregoing the procedures set forth in [Administrative Policy] V-
B-40, [Bazua] has no basis for challenging the alleged statements.”
The court also ruled on Montebello’s motion for summary adjudication of issues
with respect to particular statements, agreeing with some of Montebello’s arguments and
rejecting others. The court concluded that Montebello was entitled to summary
adjudication of issues with respect to four of the 11 allegedly defamatory statements.
The court also ruled that Bazua could not prove injury or malice because he had not
exhausted his administrative remedies, that the common interest privilege applied to
some but not all of the statements, and that Montebello was not entitled to governmental
immunity.
On April 29, 2014 the trial court entered a judgment in favor of Montebello.
Bazua timely appealed.
DISCUSSION
A. The Trial Court Erred by Sustaining the Demurrer Based on Failure
To Exhaust Administrative and Judicial Remedies
1. Standard of Review
“When reviewing an order sustaining a demurrer, we employ the de novo standard
of review. [Citation.] ‘“A demurrer tests the sufficiency of the complaint as a matter of
9
law; as such, it raises only a question of law.” [Citation.] “‘The reviewing court gives
the complaint a reasonable interpretation, and treats the demurrer as admitting all
material facts properly pleaded. [Citations.] The court does not, however, assume the
truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be
affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]”’”’”
(Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 390-391.) “‘We apply a de novo
standard of review to the legal question of whether the doctrine of exhaustion of
administrative remedies applies in a given case.’” (Defend Our Waterfront v. California
State Lands Commission (2015) 240 Cal.App.4th 570, 580; see Coastside Fishing Club v.
California Fish and Game Commission (2013) 215 Cal.App.4th 397, 414 [“[w]hether the
doctrine of exhaustion of administrative remedies applies in a given case is a legal
question that we review de novo”].)
2. Bazua’s Labor Code Section 1102.5 Claim Is Not Barred by Failure
To Exhaust Administrative Remedies
Where an applicable statute, ordinance, or regulation provides an adequate
administrative remedy, a party must exhaust it before seeking judicial relief. (Coachella
Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd.
(2005) 35 Cal.4th 1072, 1080; see American Indian Model Schools v. Oakland Unified
School Dist. (2014) 227 Cal.App.4th 258, 291.) “Exhaustion requires ‘a full presentation
to the administrative agency upon all issues of the case and at all prescribed stages of the
administrative proceedings.’ [Citation.] ‘“The exhaustion doctrine is principally
grounded on concerns favoring administrative autonomy (i.e., courts should not interfere
with an agency determination until the agency has reached a final decision) and judicial
efficiency (i.e., overworked courts should decline to intervene in an administrative
dispute unless absolutely necessary).”’” (City of San Jose v. Operating Engineers Local
Union No. 3 (2010) 49 Cal.4th 597, 609 (San Jose); see AIDS Healthcare Foundation v.
State Department of Health Care Services (2015) 241 Cal.App.4th 1327, 1337.)
10
The exhaustion requirement is subject to exceptions, one of which is where the
administrative remedy is inadequate.4 (San Jose, supra, 49 Cal.4th at p. 609.) The
statute, ordinance, regulation, or other written policy establishing an administrative
remedy must provide clearly defined procedures for the submission, evaluation, and
resolution of disputes. (City of Oakland v. Oakland Police & Fire Retirement System
(2014) 224 Cal.App.4th 210, 236-237 (City of Oakland) [city charter provision]; Unfair
Fire Tax Com. v. City of Oakland (2006) 136 Cal.App.4th 1424, 1429-1430 (Unfair Fire
Tax Com.) [ordinance].) A policy that only provides for the submission of disputes to a
decisionmaker without stating whether the aggrieved party is entitled to an evidentiary
hearing or the standard for reviewing the prior decision is inadequate. (City of Oakland,
supra, at p. 237; Unfair Fire Tax Com., supra, at p. 1430.) An administrative remedy
also “must include a fair right to be heard on an issue and to have a decision rendered
through a fair and sufficient process.” (Payne v. Anaheim Memorial Medical Center, Inc.
(2005) 130 Cal.App.4th 729, 739-740 (Payne).) An administrative remedy that fails to
satisfy these requirements is inadequate and need not be exhausted. (City of Oakland,
supra, at pp. 236-237; Unfair Fire Tax Com., supra, at p. 1430; Payne, supra, at p. 744.)
Administrative Policy V-B-40 stated that the “exclusive method of review” of
discipline imposed on an unclassified management employee such as Bazua was by
submitting a request for review by the city administrator. The policy stated that the city
administrator “shall review such facts as he determines are appropriate and shall advise
such management employee, informally, of the result of his review and his decision.”
The written policy did not provide for an evidentiary hearing, or even any hearing, made
no provision for the submission of evidence or argument, and was silent on the standard
by which the city administrator would decide the matter. It also only required an
4 Labor Code section 244, subdivision (a), enacted in 2013 (Stats. 2013, ch. 577,
§ 4), provides, “An individual is not required to exhaust administrative remedies in order
to bring a civil action under any provision of this code, unless that section under which
the action is brought expressly requires exhaustion of an administrative remedy. . . .”
Bazua does not argue that this provision applies to his action.
11
informal advisement of the decision. Because the policy lacked clearly defined
procedures for the submission, evaluation, and resolution of disputes, it was an
inadequate administrative remedy. (See City of Oakland, supra, 224 Cal.App.4th at pp.
236-237; Ahmadi-Kashani v. Regents of University of California (2008) 159 Cal.App.4th
449, 458 (Ahmadi-Kashani) [grievance procedure without a right to an evidentiary
hearing before a neutral decisionmaker was inadequate and need not be exhausted];
Unfair Fire Tax Com., supra, 136 Cal.App.4th at pp. 1429-1430 [exhaustion of
“nebulous” administrative procedure is not required]; Life Care Centers of America v.
CalOptima (2005) 133 Cal.App.4th 1169, 1177 [“[t]o constitute an internal or
administrative remedy requiring exhaustion before filing suit, ‘“[t]here must be ‘clearly
defined machinery’ for the submission, evaluation and resolution of complaints by
aggrieved parties”’”].)5 The informal internal grievance procedure of Administrative
Policy V-B-40 was also inadequate to resolve the complex issues presented in this kind of
dispute. (See Glendale City Employees’ Assn., Inc. v. City of Glendale (1975) 15 Cal.3d
328, 342-343 [“[a] procedure which provides merely for the submission of a grievance
form, without the taking of testimony, the submission of legal briefs, or resolution by an
impartial finder of fact is manifestly inadequate to handle disputes of the crucial and
complex nature”]; accord, Payne, supra, 130 Cal.App.4th at pp. 741-742.)
Because the post-termination administrative remedy was inadequate, Bazua was
not required to exhaust it. Therefore, the trial court erred by sustaining Montebello’s
demurrer to the Labor Code section 1102.5 cause of action based on the failure to exhaust
administrative remedies.
5 The written policy must provide specific procedures that the administrative body
is required to follow. (See City of Oakland, supra, 224 Cal.App.4th at p. 236; Lindelli v.
Town of Anselmo (2003) 111 Cal.App.4th 1099, 1106 (Lindelli).) Montebello’s after-the-
fact proposal to provide an evidentiary hearing with Colvin as the “judge” was contrary
to the “exclusive method of review” by the city administrator outlined in Administrative
Policy V-B-40 and could not cure the defects in the written policy.
12
3. Bazua’s Labor Code Section 1102.5 Claim Is Not Barred by Failure
To Exhaust Judicial Remedies
The doctrine of exhaustion of judicial remedies provides that a party to a quasi-
judicial proceeding who fails to challenge adverse findings made in that proceeding by
filing a petition for writ of mandate in court is bound by those findings in a later civil
action. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70; Y.K.A. Industries,
Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 355-356
(Y.K.A.).) “Exhaustion of judicial remedies . . . is necessary to avoid giving binding
‘effect to the administrative agency’s decision, because that decision has achieved finality
due to the aggrieved party’s failure to pursue the exclusive judicial remedy for reviewing
administrative action.’” (Johnson v. City of Loma Linda, supra, at p. 70.)
Bazua did not and did not need to participate in the proposed post-termination
hearing, so there were no findings for him to challenge by filing a petition for writ of
administrative mandamus. Absent any administrative findings, Bazua had no judicial
remedies to exhaust. Therefore, the exhaustion of judicial remedies doctrine is
inapplicable. (See McDonald v. Antelope Valley Community College Dist. (2008) 45
Cal.4th 88, 113 [“[i]n the absence of quasi-judicial proceedings, [plaintiff] was not
required to seek judicial relief to set aside any findings or bear the consequences of their
binding effect”]; Y.K.A., supra, 174 Cal.App.4th at p. 361 [“[t]he predicates to the
doctrine’s application are therefore the existence or availability of an administrative
process possessing a judicial character and a quasi-judicial adjudication, finding, or
action adverse to the plaintiff produced therefrom”]; Ahmadi-Kashani, supra, 159
Cal.App.4th at p. 459 [“[b]ecause Ahmadi-Kashani never participated in a quasi-judicial
hearing as part of her aborted grievance process, there was no decision rendered that
would be entitled to preclusive effect in a subsequent court proceeding”].)
13
B. The Trial Court Properly Granted Montebello’s Motion To Strike Bazua’s
PAGA Claim
“Under Code of Civil Procedure section 436, the court “may . . . at any time in its
discretion, and upon terms it deems proper: [¶]. . . [¶] (b) Strike out all or any part of any
pleading not drawn or filed in conformity with the laws of this state, a court rule, or an
order of the court.” (Code Civ. Proc., § 436, subd. (b).) The trial court’s ruling on a
motion to strike a pleading under Code of Civil Procedure section 436 generally is
reviewed for abuse of discretion. [Citations] However, the proper interpretation of a
statute, and its application to undisputed facts, presents a question of law subject to
de novo review.” (Cal-Western Business Services, Inc. v. Corning Capital Group (2013)
221 Cal.App.4th 304, 309.) A motion to strike is an appropriate method for challenging a
PAGA claim. (See USS-POSCO Industries v. Case (2016) 244 Cal.App.4th 197, 222
[defective PAGA claim is “subject to a demurrer or motion to strike”]; Caliber
Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385 [“[t]he appropriate
procedural device for challenging a portion of a cause of action seeking an improper
remedy is a motion to strike”].)
PAGA authorizes an “aggrieved employee” to file a civil action “on behalf of
himself or herself and other current or former employees” and seek civil penalties for
violations. (Lab. Code, § 2699, subd. (a).) Civil penalties imposed under PAGA are
distributed 75 percent to the Labor and Workforce Development Agency and 25 percent
to the aggrieved employees. (Id., subd. (i).) “The act’s declared purpose is to
supplement enforcement actions by public agencies, which lack adequate resources to
bring all such actions themselves. (Stats. 2003, ch. 906, § 1 [Legislature’s findings and
declarations].) In a PAGA claim the employee plaintiff represents the same legal right
and interest as state labor law enforcement agencies—namely, recovery of civil penalties
that otherwise would have been assessed and collected by the Labor Workforce
Development Agency.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.)
California courts construing Labor Code section 2699, subdivision (a), have
concluded that an aggrieved employee suing under PAGA must bring the claim as a
14
representative action on behalf of “himself or herself and other current or former
employees” (Lab. Code, § 2699, subd. (a), italics added).6 (See Rope v. Auto-Chlor
System of Washington, Inc. (2013) 220 Cal.App.4th 635, 651, fn. 7 [“[s]uits brought
under PAGA must be representative actions”]; Reyes v. Macy’s, Inc. (2011) 202
Cal.App.4th 1119, 1123-1124 [“[a] plaintiff asserting a PAGA claim may not bring the
claim simply on his or her own behalf but must bring it as a representative action and
include ‘other current or former employees’”].) Bazua argues that Reyes “did not hold
that a single plaintiff’s PAGA claims must be dismissed,” but instead “held that the
PAGA claim was not an individual claim and thus could not be compelled to arbitration
with the rest of Reyes’ case.” Bazua, however, does not explain why the language in
Reyes does not apply to his PAGA claim, and he does not even address Rope. He asserts
that he alleged he was suing on behalf of himself and other current or former employees,
but he has not explained how the allegations in his complaint concerning his termination
provide a factual basis for a violation of Labor Code section 1102.5 with respect to any
other employees. Bazua’s lawsuit is about his personal experience working for
Montebello and his personal grievances against the city. Bazua is not bringing this action
or seeking to recover anything on behalf of anyone but himself.
C. The Trial Court Erred by Granting Summary Judgment Based on
Failure To Exhaust Administrative Remedies
In granting Montebello’s motion for summary judgment on Bazua’s sole
remaining cause of action for defamation, the trial court stated that Bazua’s failure to
exhaust his administrative remedies precluded any claim that depended on proving his
termination was wrongful. The court ruled that, because the defamation cause of action
6 Labor Code 2699, subdivision (g)(1), also states that an aggrieved employee may
recover a monetary penalty in a civil action “filed on behalf of himself or herself and
other current or former employees against whom one or more of the alleged violations
was committed.” (Italics added.)
15
challenged the stated reasons for Bazua’s termination, Bazua’s failure to exhaust his
administrative remedies precluded his defamation cause of action in its entirety. Because
the exhaustion of administrative remedies doctrine is inapplicable, however, the basis for
the trial court’s ruling no longer exists and the court’s ruling must be reversed.
Moreover, the exhaustion of administrative remedies doctrine applies only where
there is an administrative remedy available to address the particular grievance. (See
Payne, supra, 130 Cal.App.4th at pp. 743-744 [plaintiff was not required to exhaust an
internal grievance procedure because his specific grievance was not within the scope of
the hearing offered]; Lindelli, supra, 111 Cal.App.4th at p. 1105 [“‘the doctrine [of
exhaustion of administrative remedies] does not apply in those situations where no
specific administrative remedies are available to the plaintiff’”].) Montebello’s
Administrative Policy V-B-40 only provided for the review of an imposition of
discipline. Defamation is not discipline, and Policy V-B-40 provided no remedy for
defamatory statements. Montebello has not cited any authority for the proposition that a
failure to exhaust an administrative remedy, which does not result in factual findings that
might have collateral estoppel or other preclusive effect, precludes an employee from
pursuing a defamation cause of action that is not within the scope of grievances for which
the employer has provided the administrative remedy. Bazua’s failure to exhaust an
administrative remedy he did not have for his defamation claim does not preclude him
from pursuing that claim in court.
Johnson v. Hydraulic Research & Mfg. Co. (1977) 70 Cal.App.3d 675 (Johnson),
cited by Montebello, is distinguishable. In that case a company terminated an employee
after a doctor to whom the company had referred him told the company that the employee
had tested positive for barbiturates. The employee sued the company for interference
with his contractual relations with the doctor, conspiring with the doctor to commit
unprofessional conduct, and defamation, alleging that “the doctor had no right to disclose
to the company the results of the blood test.” (Id. at p. 678.) The employee did not
exhaust the collective bargaining agreement’s “specific, exclusive grievance and
arbitration procedures to resolve disputes of this nature.” (Id. at p. 679.) The court held
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that, “[b]ecause the procedures established in the collective bargaining agreement were
intended to be exclusive,” the employee’s “failure to exhaust those procedures precludes
the present attempt to resort to the courts instead.” (Ibid.)
Johnson was about exhaustion of a procedure in a collective bargaining
agreement, not exhaustion of administrative remedies, which the court only mentioned in
passing as “‘analogous.’” (Johnson, supra, 70 Cal.App.3d at p. 679.) The court in
Johnson emphasized that its decision was based on the “well established” rule that “a
party to a collective bargaining contract which provides grievance and arbitration
machinery for the settlement of disputes within the scope of such contract must exhaust
the internal remedies before resorting to the courts in the absence of facts excusing such
exhaustion.” (Ibid.; see Araiza v. National Steel and Shipbuilding Co. (S.D. Cal. 1997)
973 F.Supp. 963, 969 [“[t]he dispute in Johnson concerned the interpretation and
application of specific clauses of the collective bargaining agreement”].) Montebello
does not provide any authority that Johnson applies outside the context of collective
bargaining agreement, or for the proposition that the failure to exhaust administrative
remedies with respect to the imposition of discipline precludes a defamation cause of
action in these circumstances.7
7 The other case cited by Montebello, Joftes v. Kaufman (D.D.C. 1971) 324 F.Supp.
660, also involved a grievance procedure under a collective bargaining agreement. The
collective bargaining agreement authorized the employer to disclose the reasons for the
plaintiff’s discipline to persons with a legitimate interest. (Id. at pp. 662-663; see
Wallace v. Skadden, Arps, Slate, Meagher & Flom (D.C. 1998) 715 A.2d 873, 880 [in
Joftes “the contract in question provided for or contemplated the publication of the
evaluations of which [the] plaintiff was complaining”].) Moreover, the holding of Joftes
was that the communications were privileged. (See Joftes, at p. 663 [“[i]t is our
conclusion that statements made either by representatives of management or by
representatives of an employee at a conference or bargaining session having for its
purpose the adjustment of a grievance of the employee or other peaceable disposition of
such grievance are unqualifiedly privileged”].)
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D. The Trial Court Erred in Granting Summary Adjudication of Issues
In addition to granting Montebello’s motion for summary judgment on the entire
defamation cause of action, the trial court summarily adjudicated parts of the defamation
cause of action in a manner that did not dispose of the entire cause of action. Montebello
identified 11 separate allegedly defamatory statements, organized into categories of
statements that city officials made to third parties, statements that city officials made to
city employees, and statements that Bazua repeated to third parties. Montebello moved
for summary adjudication as to each statement on different grounds, including that the
statement was not defamatory, Bazua suffered no injury, there was no publication, the
statements were protected by the common interest privilege, and governmental immunity.
The trial court granted summary adjudication on four of the statements, concluding that
one statement was true and that Montebello was not liable for Bazua’s publication of
three other statements.
Code of Civil Procedure section 437c, however, does not authorize such summary
adjudication of issues; it allows the summary adjudication of an entire cause of action, an
affirmative defense, a claim for damages, or an issue of duty. (See Code Civ. Proc.,
§ 437c, subd. (f)(1) [“[a] motion for summary adjudication shall be granted only if it
completely disposes of a cause of action”]; McCaskey v. California State Auto. Assn.
(2010) 189 Cal.App.4th 947, 975 [“there can be no summary adjudication of less than an
entire cause of action”]; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 251
[“[s]ummary adjudication must completely dispose of the cause of action to which it is
directed”].)8 The trial court erred to the extent it granted summary adjudication of issues
8 At the time of Montebello’s motion the only exception was former subdivision (s)
of Code of Civil Procedure section 437c, which authorized a motion for “summary
adjudication of a legal issue or a claim for damages other than punitive damages that does
not completely dispose of a cause of action, an affirmative defense, or an issue of duty.”
(Stats. 2011, ch. 419, § 3.) Former subdivision (s) allowed such a motion only on a prior
stipulation by the parties and a prior court order finding that the motion would further the
interests of judicial economy or significantly improve the parties’ ability to settle the
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based on the various categories of defamatory statements created by Montebello for
purposes of the motion.
DISPOSITION
The judgment is reversed and remanded to the trial court with directions to vacate
its order sustaining the demurrer to the cause of action for violation of Labor Code
section 1102.5 without leave to amend, and to enter a new order overruling the demurrer
and granting the motion to strike the PAGA claim. The trial court is also directed to
vacate its order granting the motion for summary judgment and adjudication of issues on
the defamation cause of action, and to enter a new order denying the motion. Bazua is to
recover his costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J. ZELON, J.
case. There is no indication in the record that the parties ever filed such a stipulation or
that the trial court made the required findings.
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