Baumbusch v.
College Dist.
Filed 2/27/12 Baumbusch v. Victor Valley Community
College
Dist. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
CRAIG BAUMBUSCH,
Plaintiff
and Appellant,
v.
VICTOR VALLEY COMMUNITY COLLEGE DISTRICT et al.,
Defendants
and Respondents.
E053267
(Super.Ct.No.
CIVVS1005762)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Gilbert G. Ochoa, Judge, and Kirtland L. Mahlum, Temporary Judge
(pursuant to Cal. Const., art. VI, § 21).
Craig
Baumbusch, in pro. per., for Plaintiff and Appellant.
Carpenter,
Rothans & Dumont, Louis R. Dumont and Justin Reade Sarno for Defendants and
Respondents.
On
August 11, 2010, plaintiff and appellant Craig Baumbusch (Baumbusch) filed a
petition for writ of mandamus against
Victor Valley Community College District (District), and against Angela Valles,
Dennis Henderson, Joe Range, Don Nelson and Chris Mollenkamp, as members of the
District’s Board of Trustees; Christopher O’Hearn, as District President;
Fusako Yokotobi, as District Vice-President Human Resources; Leonard Knight, as
District Chief of Police; Noreen Jacquez (Jacquez), as District Employee; and
Salena Gonzales (Gonzales), as District Employee (herein collectively referred
to as Defendants), seeking to enjoin Jacquez and Gonzales from “unlawfully
exercising the powers of a peace officer and unlawfully occupying the
classified position of Campus Police Officer.”
The District and Defendants demurred to the petition for writ of
mandamus. The trial court sustained the
demurrers without leave to amend, and on March 4,
2011, judgment of dismissal was entered. Baumbusch challenges the
trial court’s ruling.
I. PROCEDURAL BACKGROUND AND FACTS
A demurrer admits all the truth of all facts properly
pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
966-967.) Accordingly, we will refer to
the allegations in the complaint, or in this case, the petition for writ of
mandamus, for the chronology of this matter.
(See Align Technology, Inc. v.
Tran (2009) 179 Cal.App.4th 949, 954.)
“[O]n review of a demurrer, in addition to the allegations of the
complaint, we may consider other relevant matters of which the trial court
could have taken judicial notice and we may treat such matters as having been
pleaded. [Citations.]” (Coopers
& Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 538.)
Baumbusch
is a police officer for the District. He
is the president of the Police Officers Association, Victory Valley Community
College District—Police Department (Association). On March 5,
2010, the Association, via Baumbusch, filed a
Act (EERA) Representation Petition, requesting severance from the
“incumbent employee organization California School Employees Association
[(CSEA)] chapter 584 . . . pursuant to the California
Educational Employment Relations Act . . . .” The Association wanted to create “a
bargaining unit consisting of ‘persons appointed as campus police officers or
campus reserve police officers in compliance with California state laws and
district policies . . . .”
On March 24, 2010, CSEA filed a statement in opposition to the
severance petition, questioning “whether the Association had the support of a
majority of the employees in the proposed unit,” and the “appropriateness of
the bargaining unit described by the Association.” On April 13, the District filed its
response to the severance petition, stating that the “employees covered by the
severance request are currently included in a wall-to-wall classified
bargaining unit represented by the [CSEA],” that the “size of the proposed unit
is 13,” that “CSEA was recognized as the exclusive representative on
May 10, 1976,” and that the written agreement between CSEA and the
District would expire on June 30, 2010.
The response also stated that a copy of the posted notice had been sent
to the Public Employment Relations Board (PERB) “on April 2, 2010, as
requested.”
The
Association submitted a “Statement of non-concurrence and disagreement with
information obtained by” PERB from District.
Specifically, the Association alleged that Jacquez and Gonzales were
unlawfully designated as peace officers, were unlawfully exercising the powers
of a peace officer, and were unlawfully occupying the classified position of
Campus Police Officer. On April 23,
2010, PERB stated that the District “confirmed the accuracy of the [Association’s]
statements,” that the District “must file . . . a decision,” and
that the Association “may file a petition for Board
investigation . . . if . . . [a] decision is not
filed or [the District] does not request a Board investigation.” In a letter dated August 4, 2010, PERB
stated: “On May 10, 2010, the
District declined to recognize the Association as the exclusive representative
of the proposed unit due to the outstanding issues raised by CSEA.”
On
July 7, 2010, PERB conducted an informal conference to explore settlement
and clarify the issues. It found that
the issue currently before PERB is whether the bargaining unit that the
Association sought to create is appropriate.
In answering this question, PERB analyzed three areas, namely, community
of interest, efficiency of the District’s operations, and history of
representation. Regarding the first
area, PERB found that “the specific positions identified in the Association’s
petition do not have a community of interest separate and distinct from other
positions in CSEA’s bargaining unit.” Regarding the second area, PERB found that
“the unit proposed by the Association appears to negatively affect the
efficiency of the District’s operations,” because it would cause duplication of
negotiation efforts in that the District would have to negotiate with two
separate bargaining units for two separate sets of employees, even though the
positions share many of the same working conditions. Finally, as to the third area, PERB found
there was insufficient evidence to suggest that CSEA’s representation was
either effective or ineffective.
However, given the first two areas, PERB concluded that the
Association’s proposed bargaining unit “does not appear to be an appropriate
unit.” Nonetheless, PERB offered the
Association an “opportunity to SHOW CAUSE as to why its severance petition[]
should not be dismissed for seeking to create an inappropriate bargaining
unit.”
On
August 11, 2010, the Association responded to PERB’s order to show cause. After considering the Association’s response,
on September 9, 2010, PERB dismissed the Association’s severance petition
on the grounds that the proposed unit is not an appropriate unit. Six days later, the Association filed an
appeal before PERB on its order of dismissal of the severance petition. PERB denied the Association’s appeal and
ordered that its severance petition be dismissed. Simultaneously, on August 31, 2010,
Baumbusch, in his individual capacity, filed a petition for writ of mandamus
against Defendants. He sought to enjoin
Vasquez and Gonzales “from unlawfully exercising the powers of a peace officer
and from unlawfully occupying the classified position of Campus Police
Officer.”
The
District and Defendants separately demurred.
The District argued that Baumbusch had failed to exhaust his administrative
remedies, that he had an adequate remedy at law to contest the allegation that
“there are persons ‘unlawfully exercising the powers of a peace officer and
unlawfully occupying the classified position of Campus Police Officer,’” and
that he failed to plead facts sufficient to state a cause of action against the
District and Defendants. Baumbusch
opposed the District’s demurrer.
Following argument, the trial court sustained the demurrer without leave
to amend, stating: “First, as to the
actions relating to the composition of the bargaining unit. I agree it is initially—PERB has initial
jurisdiction; that Mr. Baumbusch, an individual, has not brought an action in
front of PERB, so he has not exhausted his administrative remedies. Again, I’m talking about Mr. Baumbusch as an
individual. Secondly, the court does not
feel that he has sufficiently shown that he has standing in this matter for the
previously— reasons previously stated.
He has not brought it either as the Interim Chief of Police nor as the
president of the association. And,
again, I’ve already stated my reasons. I
don’t feel that he has sufficiently shown standing as petitioner in this case.” Defendants’ demurrer was also granted without
leave to amend, on the same grounds.
Baumbusch appeals.
II. STANDARD OF REVIEW
“‘On
review of an order sustaining a demurrer without leave to amend, 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.” [Citation.]’
[Citation.] ‘“‘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.]”’ [Citation.] ‘“We affirm if any ground offered in support
of the demurrer was well taken but find error if the plaintiff has stated a
cause of action under any possible legal theory. [Citations.]
We are not bound by the trial court’s stated reasons, if any, supporting
its ruling; we review the ruling, not its rationale. [Citation.]’
[Citation.]” (
Francisco (2010) 185 Cal.App.4th 424, 433; see also Committee for Green Foothills v. Santa Clara County Bd. of Supervisors
(2010) 48 Cal.4th 32, 42.)
III. DISCUSSION
According
to his petition, Baumbusch sought to enjoin Jacquez and Gonzales from
exercising the powers of “peace officers” and from occupying the classified
position of “campus police officers,” because neither possessed the required
training certificates, as required by, inter alia, Penal Code sections 832.2,
832.3, subdivisions (a), (f), 832.4, subdivisions (a) and (b). However, Baumbusch also referenced his
position as president of the Association, CSEA’s position as the exclusive
employee organization representing the District, the Association’s petition for
severance from CSEA, the District’s response, and PERB’s statement that the
District confirmed the accuracy of the Association’s statement.
According
to the trial court and the District, Baumbusch was raising two intertwined
issues, namely, the composition of the bargaining unit (CSEA or the
Association) and whether the District may allow its employees to exercise the
powers of peace officer when they do not possess all of the required training
and certificates. In response to both
issues, the trial court found that Baumbusch had an adequate remedy at law in
the form of administrative redress before PERB, which he, as a citizen of the
State of California, failed to bring. On
appeal, Baumbusch contends “this is a case of public officers of public
entities arrogantly, recklessly and erroneously believing they can defy,
ignore, impair and defeat United States and California State legislation,
decisional law, and constitutional law. . . . Continuing to unlawfully employ, unlawfully
compensate and unlawfully designate Jacquez and Gonzales as campus police
officers . . . denies to the Community the equal protection and
uniform application of the law while perpetrating the end-run of Community
betrayal institutionalized by [the Districts and Defendants].”
In
a nutshell, it appears that Baumbusch is not happy that he had to be included
in the same bargaining unit as two members whom he alleges lack the required certifications,
and that his newly created unit, the Association (which did not include the two
members), was denied severance to bargain separately from CSEA (which did
include the two members). When the
Association’s severance petition was denied, Baumbusch, individually, turned to
the courts for an order directing the District to terminate Jacquez and
Gonzales as campus police officers. We,
like the trial court, conclude that Baumbusch has failed to exhaust his administrative
remedies.
To
begin with, Baumbusch’s primary complaint is that the District and Defendants,
by employing Jacquez and Gonzales as campus police officers, are in violation
of various Education, Vehicle, Government and Penal Code sections, along with
both the United States and California Constitutions. Pursuant to Government Code section 3541.3,
PERB is vested with certain powers and duties, including the power to
“investigate . . . alleged violations of this chapter, and take
any action and make any determinations in respect of these . . .
alleged violations as the board deems necessary,” and to “take any other action
as the board deems necessary to discharge its powers and
duties . . . .”
(Gov. Code, § 3541.3, subds. (i) & (n).) The alleged violations of the various
statutes are within the investigatory power of PERB. (Leek
v. Washington Unified School Dist. (1981) 124 Cal.App.3d 43, 50-51.)
“In
general, a party must exhaust its administrative remedies before resorting to
the courts. [Citation.] Under this rule, an administrative remedy is
exhausted only upon termination of all available, nonduplicative administrative
review procedures. [Citation.]” (City
and County of San Francisco v. International Union of Operating Engineers,
Local 39 (2007) 151 Cal.App.4th 938, 947 (Local 39).) Here, the issue
raised by Baumbusch was not raised in the Association’s severance petition or
its appeal. Rather, the only issue PERB
was called upon to decide was the appropriateness of the Association’s
severance petition. Thus, Baumbusch must
first exhaust his administrative remedies.
Although he argues that “[c]ourts of appeal have held that where the
conduct of a party is claimed to violate a duty
imposed under the Education Code exhaustion of PERB remedies is not required,”
(italics omitted, boldface in original) his reliance on Pittsburg Unified School Dist v. California School Employees Assn.
(1985) 166 Cal.App.3d 875, 887 (Pittsburg),
for this proposition is misplaced.
In
Pittsburg, a school employees
association was picketing and leafleting outside the personal offices of
certain school board members during negotiations. (Pittsburg,
supra, 166 Cal.App.3d at pp.
881-882.) The school district sought a
temporary restraining order. (
and the association appealed. (Id. at
pp. 883-884.) Confronting the issue of
jurisdiction, the court found that the activity was arguably protected or
arguably prohibited by EERA; however, the court concluded that the school
district was excused from the requirement to exhaust its administrative
remedies with PERB because of the “‘local concern’” exception to
preemption. (Pittsburg, supra, at p.
886.) Specifically, the court observed
that certain issues are “neither of jurisdictional interest to PERB nor within
its areas of expertise.” (
practices and conflicts of interest involving members of the governing board of
a school district. (Ibid.) “Such issues are, on
the other hand, of obvious interest to the public and involve legal questions
squarely within the jurisdiction and expertise of the courts.” (Ibid.) Here, there is no disparity between the
public and PERB interest at stake, which relates to providing campus police
services.
Notwithstanding
the above, we recognize that “[t]he failure to exhaust an administrative remedy
is excused if it is clear that exhaustion would be futile. [Citation.]
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. [Citation.] Rather, the party must show what the agency’s
ruling would be in the particular case
before the court. [Citation.]” (Local
39, supra, 151 Cal.App.4th at p.
947.) Here, Baumbusch cannot invoke the
futility exception simply by pointing to this statement by PERB: “To the extent that the Association is
seeking to have PERB require the District to comply with the Association’s
interpretation of the Penal Code, PERB lacks the jurisdiction to do so.” Rather, Baumbusch must show how PERB
inevitably would rule on his claim that the District’s employment of Jacquez
and Gonzales as campus police officers is in violation of several statutory laws. Other than mere speculation, Baumbusch has
not attempted to carry that burden.
Moreover,
in deciding whether the administrative jurisdiction exception applies, we
consider “the injury or burden that exhaustion will impose, the strength of the
legal argument that the agency lacks jurisdiction, and the extent to which
administrative expertise may aid in resolving the jurisdictional issue. [Citation.]”
(Coachella Valley Mosquito &
Vector Control Dist. v. California Public Employment Relations Bd. (2005)
35 Cal.4th 1072, 1082.) Here, to the
extent that Baumbusch is singling out Jacquez and Gonzales, he is, in effect,
challenging the composition of the bargaining unit, whether it be the
Association or CSEA, and the trial court correctly ruled that PERB had
exclusive jurisdiction over this dispute.
Otherwise, as noted above, alleged statutory violations are within the
investigatory powers of PERB, and an appeal to PERB is the more expedient
remedy when compared to filing an action in the trial courts.
Finally,
we agree with the trial court’s finding that Baumbusch lacked standing as an
individual. As the District and
Defendants point out, Baumbusch “does not assert that he was seized or
otherwise detained by the individuals he claims were acting as peace officers
without authority. In fact, [he] does
not assert an injury with respect to any duty owed by the [D]istrict outside
the context of the severance petition, which is a matter exclusively within the
domain of PERB.”
For
the above reasons, the trial court properly granted the demurrer without leave
to amend.
IV. DISPOSITION
The judgment is affirmed. District and Defendants are awarded costs on
appeal.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
MCKINSTER
J.
name="_ftn1" title=""> [1] Judge Ochoa entered the judgment; however,
Commissioner Mahlum presided over the hearings on and sustained the demurrers
to Baumbusch’s petition.
