Mabeus v. San Diego County Sheriffs Dept.

Filed 4/2/08 Mabeus v. San Diego County Sheriffs Dept. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed.

I.

INTRODUCTION

The San Diego County Sheriff's Department (Department) decided not to retain Sherilyn Mabeus during her probationary period as a detentions nurse. Mabeus filed a complaint with the San Diego County Civil Service Commission (Commission). In her complaint, Mabeus alleged that the Department's decision not to retain her was made in retaliation for her reporting several health and safety violations to her supervisors, and for filing two complaints with the Department's Internal Affairs Office regarding a separate workplace incident. The Commission upheld the Department's non-retention decision. Mabeus filed a complaint/petition for writ of mandate in the trial court against the Commission and the Department, seeking to overturn the Commission's decision. The trial court denied the petition in its entirety and entered a judgment dismissing the action.^[1]

On appeal, Mabeus claims that the Commission's determination that she was not discriminated against was not supported by the weight of the evidence. Mabeus also claims that the Commission's hearing officer failed to consider evidence that demonstrated that the Department's reasons for failing to retain her were pretextual. Mabeus further claims that the trial court erred in denying her request that the court enter an order preventing the Department from asserting the defense of failure to exhaust administrative remedies in future litigation. We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In 2004, the Department hired Mabeus as a probationary detentions nurse. The Department determined not to retain her during her probationary period. In November 2005, Mabeus filed a complaint with the Commission alleging that the Department had discriminated against her. In her complaint, Mabeus alleged that the Department decided not to retain her in retaliation for her having reported several health and safety violations to her supervisors and having filed two complaints with the Department's Internal Affairs Office regarding a separate incident. The Commission referred the matter to the County of San Diego's Office of Internal Affairs (OIA). The OIA found that Mabeus had established a prima facie case of discrimination, and that there was probable cause to hold a hearing on Mabeus's complaint.

A Commission hearing officer held a hearing on Mabeus's complaint. At the hearing, numerous witnesses testified, including Mabeus and her supervisors. The hearing officer issued a written decision in which he found that the evidence presented at the hearing demonstrated that "[Mabeus's] non-retention was the result of the Director of Nursing's cumulative impression of her as uncooperative and resistant, and as causing unnecessary stress to her co-workers and immediate supervisors." The hearing officer further determined that Mabeus had failed to demonstrate that her non-retention was the result of retaliation or discrimination. The Commission approved the hearing officer's decision.

Mabeus subsequently filed a complaint for damages/verified petition for writ of mandamus in the trial court against the Commission and the Department, seeking to overturn the Commission's decision. The trial court entered an order denying the petition in its entirety and entered a judgment dismissing the action.

Mabeus appeals.

III.

DISCUSSION

A. Mabeus failed to demonstrate that the Commission's determination that the

Department did not discriminate against her was contrary to the weight

of the evidence

Mabeus claims that the Commission's determination that the Department did not discriminate against her is not supported by the weight of the evidence.^[2]

1. Standard of review and governing law

"When an administrative decision substantially affects a fundamental vested right, the trial court uses an independent judgment standard of review, examines the administrative record for errors of law, and exercises its independent judgment upon the evidence." (Jackson v. City of Los Angeles (2003) 111 Cal.App.4th 899, 902 (Jackson).) Where exercising its independent judgment, "a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence." (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

"When the administrative decision neither involves nor substantially affects such a right, the trial court must review the whole administrative record to determine whether the findings are supported by substantial evidence and whether the agency committed any errors of law. [Citation.]" (Concord Communities, L.P. v. City of Concord(2001) 91 Cal.App.4th 1407, 1413.)

"In the appellate court, the appropriate standard of review is substantial evidence, regardless of the nature of the right involved. Thus, even in those cases where 'the trial court is required to review an administrative decision under the independent judgment standard of review, the standard of review on appeal of the trial court's determination is the substantial evidence test. [Citations.]' [Citation.] But the reviewing court's focus changes, depending on which standard of review governed at trial. 'If the independent judgment test . . . applied at the trial, . . . on appeal, the trial court's factual bases for its decision, not the findings of the agency, are reviewed.' [Citation.] 'If the substantial evidence test governed at the trial level, . . . [] . . . [] . . . the appellate court focuses on the findings made by the agency rather than on findings made by the superior court.' [Citation.]" (MHC Operating Limited Partnership v. City of San Jose(2003) 106 Cal.App.4th 204, 218.)

2. Mabeus failed to carry her burden of convincing the trial court that

the Commission's findings were contrary to the weight of the evidence

We assume for purposes of this decision that the trial court was required to apply the independent judgment standard of review in ruling on Mabeus's petition for writ of mandate.^[3]

In seeking a writ of mandate, Mabeus lodged only portions of her own testimony from the proceeding before the Commission's hearing officer and selected exhibits that were presented at that hearing. She failed to provide the trial court with any of the testimony of the other witnesses who appeared before the hearing officer. Included among these witnesses were Mabeus's direct supervisors and Royanne Schissel, the former director of nursing for the Department's medical services division, who made the decision not to retain Mabeus.^[4] The Commission relied on Schissel's testimony and the testimony of Mabeus's direct supervisors in determining that the Department had not discriminated against Mabeus. By failing to provide the testimony on which the Commission based its decision, Mabeus failed to meet her burden of convincing the trial court that the Commission's findings were contrary to the weight of the evidence.

Further, none of the arguments that Mabeus's raises in her brief in this court demonstrates that the trial court erred in denying her petition. Mabeus notes that Schissel wrote a letter outlining the reasons for Mabeus's non-retention. Mabeus contends that the letter contains "vicious outright lies." Specifically, Mabeus claims that Schissel's statement that Mabeus's charge nurse and her supervising nurse agreed that continued training would not improve Mabeus's job performance was inconsistent with statements the charge nurse and the supervising nurse made during the OIA investigation. Mabeus also notes that the hearing officer found that the supervisors' statements regarding Mabeus's performance evaluations lacked credibility in certain respects. For example, the hearing officer stated, "[the supervisors'] rationale, that they believed they were just rating her clinical skills, is not credible . . . ." Even assuming there were inconsistencies in the evidence and that certain witness's testimony lacked credibility in particular respects, Mabeus has clearly not carried her burden of demonstrating that the trial court erred in denying her petition. (See Jackson, supra, 111 Cal.App.4th at p. 902 [appellate court "must resolve all conflicts in the evidence and must draw inferences in support of the judgment"].)^[5]

B. The trial court did not err in denying Mabeus's petition on the ground that

the Commission's hearing officer failed to consider evidence demonstrating

that the Department's reasons for not retaining Mabeus were pretextual

Mabeus claims that the Commission's hearing officer "erroneously limited his jurisdiction," and thereby "failed to consider" relevant evidence demonstrating that the Department's reasons for failing to retain her were pretextual.

Mabeus notes that the hearing officer made statements at the hearing indicating that the issue he was to decide was whether Mabeus had suffered retaliatory discrimination, and not "whether [Mabeus] was a competent nurse." However, none of the hearing officer's statements that Mabeus quotes in her brief indicate that the hearing officer concluded that evidence demonstrating pretext was irrelevant to the determination of whether Mabeus suffered discrimination. Further, Mabeus fails to identify any evidence bearing on the issue of pretext that the hearing officer failed to consider. Finally, despite Mabeus's assertion in the conclusion of her brief that the hearing officer improperly "limited the admission of what should have clearly been admissible evidence," Mabeus does not identify any such erroneously excluded evidence.

C. The trial court did not err in refusing to issue an order preventing the

Department from asserting the defense of failure to exhaust administrative

remedies in future litigation

Mabeus claims that the trial court erred in refusing to issue an order preventing the Department from asserting the defense of failure to exhaust administrative remedies in future litigation.

1. Factual and procedural background

In May 2006, Mabeus filed a complaint against the Department and various other individuals in a separate case (Mabeus v. County of San Diego, Sheriff's Department (Super. Ct. San Diego County, 2006, No. GIC865175 (GIC865175)). That complaint was based, in part, on the same facts as are at issue in this case. It appears that the Department filed a demurrer to the complaint on the ground that Mabeus failed to exhaust her administrative remedies. In August 2006, the trial court issued a tentative ruling in GIC865175 sustaining the Department's demurrer without leave to amend.^[6] It is undisputed that Mabeus filed a dismissal without prejudice in GIC865175 before the tentative ruling in that case became final.

In September 2006, Mabeus filed this action. In her complaint/petition, she requested that the trial court issue a peremptory writ of mandate preventing the Department from raising the defense of failure to exhaust administrative remedies in subsequent litigation between the parties. In its order denying Mabeus's petition, the trial court ruled, "[Mabeus] has not shown why this Court should issue a directive that petitioner is excused from the exhaustion of administrative remedies doctrine in any subsequent complaint for damages that [Mabeus] may file against respondents."

2. Mabeus's request for a writ of mandate barring the Department from

asserting the defense of exhaustion of administrative remedies in future

litigation is without merit

Mabeus's cites no legal authority, and we are aware of none, that would support the proposition that she was entitled to have the trial court enter an order barring the Department from asserting the defense of failure to exhaust administrative remedies in future litigation between the parties. The potential application of the doctrine of failure to exhaust administrative remedies must await such future litigation. The trial court thus did not err in denying Mabeus's request for a writ of mandate on this ground.

In her brief, Mabeus also claims that "the demurrer to Mabeus'[s] claims based on failure to exhaust administrative remedies should have been denied by the Superior Court." That claim is clearly not cognizable in this appeal. The trial court's ruling sustaining the demurrer was not made in the action from which Mabeus has appealed. Further, Mabeus dismissed the other case before the trial court's ruling on the Department's demurrer became final.

IV.

DISPOSITION

The judgment is affirmed. The Department is entitled to costs on appeal.

AARON, J.

WE CONCUR:

O'ROURKE, Acting P. J.

IRION, J.

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^[1] The record is ambiguous as to the Commission's status in this action. Mabeus's complaint/petition listed both the Department and the Commission as defendants. The judgment dismisses Mabeus's action in its entirety, but states that judgment shall be entered in favor of the Department. Mabeus's notice of appeal states that the respondents are "County of San Diego, San Diego Sheriff's Department, et al." However, Mabeus's brief lists the Department as the sole respondent. Only the Department has appeared in this court. Under these circumstances, we conclude that the judgment was entered in favor of both the Department and the Commission and that both the Department and the Commission are respondents in this appeal.

^[2] Mabeus's brief has a section entitled, "Under Either the Substantial Evidence Test and/or the Independent Judgment Test, did Appellant Establish that the Commission's Findings Were Not Supported by the Evidence?" However, the section following that heading does not contain any analysis of the evidence in this case. Another section in Mabeus's brief is entitled, "The Commissioner Ignored Several Critical Inconsistencies in the Evidence Below." We interpret this portion of Mabeus's brief as an attempt to raise the claim discussed in the text.

^[3] We do not hold that the Commission's decision affected a fundamental right. We employ this assumption only because it is clear that Mabeus's claim fails even if we assume that the independent judgment standard of review applied in the trial court.

^[4] None of this evidence is in the record on appeal, either.

^[5] Mabeus refers to a grand jury report regarding medical care in San Diego County detention facilities and to a provision in the nurse's collective bargaining unit that states that probationary employees are to be given "as much notice as is possible of their dismissal . . . ." Neither of these documents demonstrates that the trial court erred in determining that the Commission's findings were not contrary to the weight of the evidence.

^[6] The Department's demurrer in GIC865175 is not contained in the record in this case. However, the court's tentative ruling in GIC865175 sustaining the demurrer without leave to amend is in the record.