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Court of Appeal, Fourth District, Division 2, California.

Barry JOHNSON, Plaintiff and Appellant, v. CITY OF LOMA LINDA, et al., Defendants and Respondents.

No. E020480.

Decided: September 15, 1998

Duchrow & Barker and David J. Duchrow, Pico Rivera, for Plaintiff and Appellant. Liebert, Cassidy & Frierson and Debra L. Bray, Los Angeles, for Defendants and Respondents.


In Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410, the Supreme Court held that a litigant who fails to set aside an adverse administrative decision through a mandamus proceeding is bound by the administrative findings in a subsequent civil suit.   Disagreeing with a previous Court of Appeal decision, we conclude that principle bars plaintiff's claim for wrongful termination under the Fair Employment and Housing Act (FEHA) (Gov.Code, 12900 et seq.) even though plaintiff exhausted the administrative remedy provided for by FEHA before filing suit.   However, in view of the United States Supreme Court's holding in University of Tennessee v. Elliott (1986) 478 U.S. 788 [106 S.Ct. 3220, 92 L.Ed.2d 635] that unreviewed administrative findings are not binding in a suit under title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (title VII), we conclude plaintiff's title VII claim is not barred because the lower court's judgment denying his administrative mandamus petition based on laches was not a judgment on the merits.



 Because this appeal arises from a summary judgment, we accept as true (1) the evidence about which there was no material dispute, and (2) if there was a material dispute, the evidence favoring plaintiff.  (Waisbren v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 251, 48 Cal.Rptr.2d 437.)   Viewed in that light, the record shows the following.1

Plaintiff Barry Johnson was hired by the City of Loma Lindu (the City) in 1989 and became assistant city manager in 1991.   In 1992, plaintiff was assigned by John Bernardi, the city manager, to investigate possible sex discrimination by the City's community development director, Dan Smith.   Bernardi told the city council members about the investigation.   Defendant Robert Christman, a council member and the mayor of the City, said he wanted to see the woman Smith had been harassing.   Bernardi asked the council members not to become involved.

While Bernardi was out of town, Christman told plaintiff Smith was a nice guy and had not done anything wrong.   According to Bernardi, when he returned Christman continued to try to intervene in the investigation and to persuade Bernardi to drop it.

In September 1992, plaintiff issued a letter of intent to dismiss Smith.   Bernardi supported plaintiff's decision.   Smith appealed the decision and agreed to a suspension instead.   In December 1992, Christman asked plaintiff if Smith's suspension could be converted from working to calendar days and said Smith should be reimbursed for the time off without pay.

In April 1993, Bernardi resigned under threat of termination.   Christman and a city council member met with plaintiff, and Christman told plaintiff that the City's fire chief, defendant Peter Hills, would be assuming Bernardi's duties rather than plaintiff.   Christman told plaintiff that he was considered to be Bernardi's “axe man,” a perception which did not do plaintiff any good in the City, and that plaintiff should go work for another city.

Beginning in May 1993, Hills gradually removed plaintiff's authority and reassigned his duties.   Plaintiff attended a budget meeting in May 1993 at which “manipulating the budget in order to justify layoffs” was discussed.   Plaintiff understood based on the discussion that the budget would be manipulated to justify layoffs for personal rather than business reasons.

Later in May 1993, Hills stated that Christman had selected four or five positions for layoff, including those held by two employees Smith had allegedly discriminated against and harassed.   At this time, the budget was balanced and there had been no analysis to determine whether layoffs were necessary.   Hills also said Christman wanted to hire an outside independent contractor to take over plaintiff's last remaining duties.

On June 8, 1993, after a vacation, plaintiff was told by Hills that plaintiff's position was slated for layoff and that the decision was “directly related to” plaintiff's association with Bernardi.   Plaintiff said he felt he was being retaliated against due in part to his association with Bernardi.   Hills said he could not deny that was part of it.   Hills also said the City budget was in a “crisis” because he had shifted funding from the redevelopment fund to the general fund.   At the same time, the City hired the independent contractor mentioned above, using funds from the same redevelopment budget from which Hills had removed plaintiff's position due to insufficient funds.

On July 14, 1993, Hills told plaintiff his position was being eliminated from the budget, and there was no other position plaintiff could assume.

B. Procedural Background

Plaintiff filed a grievance seeking reinstatement to his position as assistant city manager.   The City's personnel board found that plaintiff's position was properly eliminated in the interest of economy and that the City had not violated any laws against discrimination.   The city council upheld the personnel board's decision.

In December 1994, plaintiff filed charges of discrimination with the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC).   He alleged in those charges that his termination was in retaliation for protesting actions illegal under FEHA. The same month, plaintiff received “right-to-sue” letters from the DFEH.

Plaintiff brought this action in July 1995.   Subsequently, he amended his complaint three times.   Insofar as they are relevant to this appeal, plaintiff's claims asserted (1) retaliation for opposing discriminatory practices in violation of FEHA, Government Code section 12940, subdivision (f), against all defendants;  (2) retaliation for opposing discriminatory practices in violation of title VII, 42 U.S.C. section 2000e-3(a), against the City;  and (3) retaliation for political activity in violation of Labor Code sections 1101, 1102, and 1105, against all defendants.   As an additional cause of action, plaintiff joined with the complaint a petition for administrative mandamus pursuant to Code of Civil Procedure section 1094.5 (hereafter, section 1094.5), against the City. Plaintiff sought reinstatement, back pay and benefits, and damages.

Defendants demurred to the first and second amended complaints.   Insofar as its rulings on the demurrers are relevant here, the court sustained the individual defendants' demurrer to the second amended complaint as to all causes of action asserted against them, without leave to amend, apparently on the basis of the “discretionary immunity” afforded by Government Code section 820.2.

The City, the sole remaining named defendant, then moved for summary judgment.   The court ruled plaintiff was barred by laches from pursuing his administrative mandamus claim.   It further ruled plaintiff was required to adjudicate his mandamus claim before pursuing his remaining claims and that, since he could not pursue his mandamus claim, his remaining claims were barred for failure to exhaust administrative/judicial remedies.   Accordingly, it granted the motion for summary judgment.


DISCUSSIONA. Liability Against the City

The court's grant of summary judgment on all of plaintiff's claims against the City was based on its determination that plaintiff was guilty of laches in prosecuting his administrative mandamus proceeding.   The threshold question in considering liability against the City therefore is whether that determination was correct.

1. Laches

 Laches requires “unreasonable delay in bringing suit ‘plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay.’  [Citation.]”  (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624, 166 Cal.Rptr. 826, 614 P.2d 258;  accord Craig v. City of Poway (1994) 28 Cal.App.4th 319, 341, 33 Cal.Rptr.2d 528.)  “Generally speaking, the existence of laches is a question of fact to be determined by the trial court in light of all of the applicable circumstances, and in the absence of manifest injustice or a lack of substantial support in the evidence its determination will be sustained.”  (Miller v. Eisenhower Medical Center, supra, at p. 624, 166 Cal.Rptr. 826, 614 P.2d 258;  accord In re Marriage of Powers (1990) 218 Cal.App.3d 626, 643, 267 Cal.Rptr. 350.) 2

We first consider whether there was unreasonable delay.   The final administrative determination in this case came in December 1993 when the city council upheld the personnel board decision.   Plaintiff did not file his administrative mandamus petition until July 1995.   As of the hearing on the summary judgment motion, January 9, 1997, plaintiff had not brought the mandamus proceeding to trial.

Administrative mandamus proceedings are subject to special procedures designed to expedite their resolution.  “In most counties, writ matters are heard in one department and disposed of in a short time․”  (Cal. Administrative Mandamus (Cont. Ed. Bar) (2d ed.   1989) § 8.49, pp. 300-301.)   The case is heard by the court sitting without a jury.  (Code Civ. Proc., § 1094.5, subd. (a).)  “There is no trial, in the normal sense of the term.   The usual procedure is to introduce the administrative record, together with memoranda by the parties in support of their positions.”  (8 Witkin, Cal. Procedure (4th ed.   1997) Extraordinary Writs, § 317, p. 1122.)

In Miller v. Eisenhower Medical Center, supra, 27 Cal.3d 614, 166 Cal.Rptr. 826, 614 P.2d 258, the California Supreme Court observed that, in Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 357, fn. 3, 82 Cal.Rptr. 337, 461 P.2d 617, it had suggested that “in cases seeking review of an administrative decision there may be substantial reasons for supporting a finding of laches for delays ‘far less than’ the period of the applicable statute of limitations.”  (27 Cal.3d at p. 624, 166 Cal.Rptr. 826, 614 P.2d 258.)   At the time the court decided Conti, the statute of limitations for an administrative mandamus proceeding was three or four years.  (Conti, supra, at p. 357, fn. 3, 82 Cal.Rptr. 337, 461 P.2d 617.) The court in Conti stated, however:  “The many cases finding laches for delays of far less than three or four years may indicate that the limitation period, although suitable for a truly original mandamus action, is far too long for a proceeding which in substance is a form of appellate review of an administrative decision.”  (Ibid.)

 Subsequently, the Legislature enacted Code of Civil Procedure section 1094.6.   That section requires that a mandamus petition to review the decision of a city dismissing an employee be filed not later than 90 days after the decision becomes final.  (Code Civ. Proc., § 1094.6, subd. (a), (b), (e);  Gov.Code, § 54951.) 3  Section 1094.6 apparently does not bar plaintiff's mandamus claim in this case, because it appears the City did not notify plaintiff that the 90-day period would apply, and thus the limitations period was tolled.  (Code Civ. Proc., § 1094.6, subd. (f);  El Dorado Palm Springs, Ltd. v. Rent Review Com. (1991) 230 Cal.App.3d 335, 346, 281 Cal.Rptr. 327.)   Nonetheless, the Legislature's imposition of this unusually short limitation period illustrates its view that a dismissed public employee seeking mandamus review should proceed promptly or forfeit the right to such review.

The point is further illustrated by Code of Civil Procedure section 1086, which requires that a mandamus petitioner allege and prove he or she has no “speedy” remedy in the ordinary course of law.  “[D]elay in prosecuting an administrative mandamus action is particularly egregious because of the inherent claim of irreparable harm.”  (Oskooi v. Fountain Valley Regional Hospital (1996) 42 Cal.App.4th 233, 239, 49 Cal.Rptr.2d 769, fn. omitted (lead opn.).)

 In view of these considerations, plaintiff's delay of more than three years in seeking resolution of his mandamus claim was unreasonable.   Moreover, it is evident that plaintiff had no genuine desire for mandamus review.   In opposition to the City's motion for summary judgment, plaintiff argued he “need not have even brought the mandamus claim, since the sole purpose of such motion at this point would be for reinstatement, which Plaintiff no longer pursues․”   In this court, plaintiff made an even more telling statement:  “Had Appellant proceeded with his administrative mandamus action, he may have been faced with issue preclusion for his FEHA and Title VII claims.” 4  Thus, it appears plaintiff actually sought to avoid a resolution of his mandamus action.

Plaintiff offers no convincing justification for his delay.   His argument consists principally of assertions that pretrial proceedings, particularly a 159-day period during which the City's demurrer to the second amended complaint remained under submission, were responsible for the delay.   As the City points out, however, the demurrer was not directed at plaintiff's administrative mandamus claim and thus could not have inhibited him from bringing that claim to trial.5

 We further conclude the court properly found the other element of laches, i.e., acquiescence or prejudice, was shown by the record.   Plaintiff's admitted lack of any genuine interest in pursuing his administrative mandamus claim, or in seeking reinstatement of his position with the City, establishes acquiescence.   The facts also establish prejudice.   In Conti v. Board of Civil Service Commissioners, supra, 1 Cal.3d 351, 82 Cal.Rptr. 337, 461 P.2d 617, the Supreme Court recognized that “unreasonable delay in seeking reinstatement will sometimes work prejudice, either because reinstatement would require discharge of a substitute employee or because the employing agency might be compelled to incur a double payment consisting of back pay to the discharged employee and salary to his replacement.”  (Id., at p. 360, 82 Cal.Rptr. 337, 461 P.2d 617, fn. omitted.)

The City eliminated plaintiff's position and therefore did not replace him.   However, it reassigned his duties to existing employees in an effort not only to save money but also to implement a new management structure under which the city manager would deal with department heads and other persons directly rather than through the intermediary assistant city manager position formerly held by plaintiff.   Although it now appears plaintiff at some point abandoned any desire for reinstatement, he specifically prayed for reinstatement when he filed his mandamus petition.   The pendency of the petition exposed the City to the possibility it would be required to reinstate and pay plaintiff to do work other employees already were doing and to abandon its new management structure to accommodate plaintiff's previously eliminated position.   The uncertainty stemming from plaintiff's delay in seeking resolution of the matter consequently created prejudice to the City.

Laches “involves a large measure of judicial discretion, shaped by the exigencies of the particular case․”  (People v. Department of Housing & Community Dev. (1975) 45 Cal.App.3d 185, 195, 119 Cal.Rptr. 266.)   On the circumstances here, we conclude the court did not abuse its discretion in finding plaintiff's administrative mandamus claim barred.

2. Effect on Remaining Claims

We must next determine the effect of the court's finding of laches on plaintiff's remaining claims against the City, based on FEHA, title VII, and the Labor Code.

 a. FEHA Claim

In Westlake Community Hosp. v. Superior Court, supra, 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410 (hereafter Westlake ), the Supreme Court held that a doctor whose staff privileges had been revoked by a hospital could not pursue a tort action for damages until she had first succeeded in overturning the revocation decision through a mandamus action pursuant to section 1094.5.   There was no dispute that the doctor had fully exhausted the hospital's administrative remedies.  (Westlake, supra, at p. 479, 131 Cal.Rptr. 90, 551 P.2d 410.)   The court reasoned, however, that her tort action was “necessarily premised on an assertion that the hospital's decision to revoke plaintiff's privileges was itself erroneous and unjustified.”   (Id., at p. 484, 131 Cal.Rptr. 90, 551 P.2d 410.)   The court concluded that “so long as such a quasi-judicial decision is not set aside through appropriate review procedures the decision has the effect of establishing the propriety of the hospital's action.”  (Ibid.)

As later decisions have stated, the principle applied in Westlake “is not the doctrine of ‘failure to exhaust administrative remedies.’   Rather it is a form of res judicata, of giving collateral estoppel 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.”  (Briggs v. City of Rolling Hills Estates (1995) 40 Cal.App.4th 637, 645-646, 47 Cal.Rptr.2d 29, fn. omitted;  see generally Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 240-244, 244 Cal.Rptr. 764.)  “Unless the administrative decision is challenged, it binds the parties on the issues litigated and if those issues are fatal to a civil suit, the plaintiff cannot state a viable cause of action.”  (Knickerbocker, supra, at p. 243, 244 Cal.Rptr. 764.)

This court applied the principle to a FEHA claim in Oquendo v. California Institution for Women (1989) 212 Cal.App.3d 520, 260 Cal.Rptr. 688.   The plaintiff in that case was a probationary employee who was denied permanent employment.   The State Personnel Board found the denial was proper.   The plaintiff did not seek judicial review of the board's decision, but instead sued under FEHA, claiming the employer had denied him reasonable accommodation for his epilepsy.   The court concluded:  “Reasonable accommodation having been tried before the State Personnel Board, the determination of that administrative hearing, unchallenged by writ, became final and thus collaterally estops appellant from relitigating the validity of the hearing or its adjudication in this proceeding.”  (Id., at p. 523, 260 Cal.Rptr. 688.)

 This case differs from Oquendo only in that, instead of failing entirely to seek judicial review of the administrative determination, plaintiff filed a mandamus petition which he then failed to prosecute in a timely fashion.   That distinction, however, does not justify a different result.   The important point is that, in both Oquendo and this case, the administrative determinations remained unchallenged and thus achieved preclusive effect on the subsequent FEHA claims.   One who fails to pursue his judicial remedy to a successful conclusion stands in no better position than one who simply declines to pursue it at all.  (See Mola Development Corp. v. City of Seal Beach (1997) 57 Cal.App.4th 405, 414, 67 Cal.Rptr.2d 103 [where plaintiff filed but later dismissed mandamus petition, “it was ‘as though no [mandamus] action had ever been filed.’ ”].)

 In keeping with these authorities, the lower court in this case concluded plaintiff's failure to adjudicate his mandamus action barred his remaining claims, including his FEHA claim, “based on Plaintiff's failure to exhaust his administrative/judicial remedies.”   That conclusion was correct.   As a general matter, both the United States and the California Supreme Courts have held that collateral estoppel may be applied to administrative agency decisions where the agency acts in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.  (United States v. Utah Constr. & Min. Co. (1966) 384 U.S. 394, 422 [86 S.Ct. 1545, 16 L.Ed.2d 642];  People v. Sims (1982) 32 Cal.3d 468, 479, 186 Cal.Rptr. 77, 651 P.2d 321.)   The record demonstrates those elements were present here, and plaintiff does not contend otherwise.6

Nor can there be any dispute that the issues determined adversely to plaintiff in the administrative proceedings are fatal to his FEHA claim.   Plaintiff alleged in that claim that the City discriminated against him by retaliating against him for opposing sexual harassment, in violation of Government Code section 12940, subdivision (f).   That provision prohibits any person from retaliating against any person who has opposed or complained about a violation of FEHA. (Gov.Code, § 12940, subd. (f).)

In his grievance, plaintiff asserted that by laying him off the City had violated numerous sections of its municipal code and rules and regulations, including Rule II, section 1 of Resolution 893.   That rule provided:  “Discrimination:  In personnel actions, the City shall comply with all laws prohibiting discrimination based on race, religion, national origin, sex, age, physical handicap or marital status.”

In denying plaintiff's grievance, the personnel board found that “the position of Assistant City Manager was properly eliminated by the City Council in the interest of economy․”   The board further found:  “Mr. Johnson failed to demonstrate that any of the allegations listed in his grievance were substantiated or that the City had violated any code, rule or resolution as alleged.”   Thus, the board expressly found the City discharged plaintiff for a valid, nondiscriminatory reason and that the City had not violated any law prohibiting discriminatory conduct.   Those findings, left unchallenged by plaintiff's failure to overturn them in his mandamus proceeding, precluded his FEHA claim.

Plaintiff disputes this conclusion based on Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896, 5 Cal.Rptr.2d 64.   In that case, the plaintiff was terminated and the decision was upheld by the city's civil service commission.   The court held the plaintiff was not precluded from pursuing a FEHA claim by her failure to file a mandamus proceeding challenging the commission's decision because she had availed herself of the “alternative administrative avenue” of filing a charge of discrimination with the DFEH and EEOC, as required by FEHA. Therefore, she had “fulfilled the prerequisite for bringing a civil suit on a statutory cause of action” and “was not required to also pursue other administrative remedies” by filing a mandamus proceeding.  (Id., at pp. 910-911, 5 Cal.Rptr.2d 64.)

Plaintiff in this case, like the plaintiff in Swartzendruber, filed charges with the DFEH and EEOC prior to commencing his FEHA lawsuit.   Consequently, plaintiff argues, he was not required also to bring a mandamus proceeding.

We respectfully decline to follow Swartzendruber.   We believe its conclusion-that filing a DFEH charge exempts a plaintiff from administrative estoppel under Westlake, without any need to pursue an administrative mandamus proceeding-is wrong.   The court in Swartzendruber expressly recognized the difference, discussed at length in Knickerbocker v. City of Stockton, supra, 199 Cal.App.3d 235, 244 Cal.Rptr. 764, between failure to exhaust administrative remedies and issue preclusion by virtue of collateral estoppel for a failure to exhaust judicial remedies by filing a mandamus proceeding.  (Swartzendruber, supra, 3 Cal.App.4th at p. 905, 5 Cal.Rptr.2d 64.)   But its holding appears to confuse the two concepts.   That is, Swartzendruber held that, because the plaintiff pursued an alternative administrative remedy (filing a DFEH charge), she was excused from pursuing her judicial remedy of seeking mandamus review of the adverse administrative determination.

 The problem with this reasoning is that, as discussed, ante, Westlake 's requirement that a plaintiff successfully challenge adverse administrative findings before he or she can proceed with a civil action involving the same issues is completely independent of the requirement of exhaustion of administrative remedies.   As will be recalled, there was no question in Westlake that the plaintiff had exhausted her administrative remedies.   Rather, the Supreme Court held that, because she had not challenged the administrative findings through the exclusive remedy of a mandamus proceeding, those findings attained preclusive effect in her subsequent lawsuit.   There is no apparent reason that principle should not apply simply because the plaintiff has pursued a statutory administrative remedy.

Numerous statutory schemes contain provisions establishing administrative remedies.   We doubt the Legislature intended that, in each such instance, plaintiffs who pursue those remedies are exempt from administrative estoppel under Westlake.   Such a conclusion would ignore the policy reasons expressed by the Supreme Court in Westlake for requiring mandamus review:  “In our view, the [mandamus] requirement accords a proper respect to an association's quasi-judicial procedure, precluding an aggrieved party from circumventing the established avenue of mandamus review.   In addition, this result will simplify court procedures by providing a uniform practice of judicial, rather than jury, review of quasi-judicial administrative decisions.”  (17 Cal.3d at p. 484, 131 Cal.Rptr. 90, 551 P.2d 410.)

 While it might make sense to hold that a FEHA plaintiff who pursues his or her DFEH administrative remedy should not also have to pursue other administrative remedies, such as an employer's internal grievance procedures,7 it does not follow that, if the plaintiff does pursue the internal procedures and suffers an adverse result, he or she need not pursue the exclusive judicial remedy of a mandamus proceeding to challenge the adverse determination.   Even more, to say that a plaintiff who has exhausted his DFEH remedy has “fulfilled the prerequisite for bringing a civil suit” under FEHA (Swartzendruber, supra, 3 Cal.App.4th at p. 910, 5 Cal.Rptr.2d 64) does not answer the question of what effect unchallenged administrative findings should have in that suit.   The questions are wholly separate.8

Plaintiff also relies on Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 261 Cal.Rptr. 204, in which the court held a FEHA plaintiff who filed a charge with the DFEH was not also required to exhaust her civil service administrative remedies.  (Id., at p. 1284, 261 Cal.Rptr. 204.)   Watson, however, simply stands for the proposition that, where more than one administrative remedy exists, the plaintiff need not pursue both.   It has no bearing on whether filing a DFEH charge obviates the need, under Westlake, to pursue the judicial remedy of mandamus to challenge adverse administrative findings.

For these reasons, we conclude the court's ruling denying plaintiff's administrative mandamus petition barred his FEHA claim.

 b. Labor Code Claims**

 c. Title VII Claim

 Plaintiff's title VII claim presents different questions than do his FEHA and Labor Code claims.   The United States Supreme Court has held that state administrative agency findings which are not reviewed by a state court do not have preclusive effect in a subsequent title VII suit in federal court.  (University of Tennessee v. Elliott, supra, 478 U.S. 788, 795-796 [106 S.Ct. 3220, 92 L.Ed.2d 635] (hereafter Elliott ).)   This is true even if, under state law, an unreviewed agency decision ordinarily would have preclusive effect in a subsequent lawsuit.  (See Kremer v. Chemical Construction Corp. (1982) 456 U.S. 461, 470 fn. 7, 102 S.Ct. 1883, 72 L.Ed.2d 262,;  McInnes v. State of California (9th Cir.1991) 943 F.2d 1088, 1093-1094.)   The court based its holding on its conclusion that “․ Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims.”  (Elliott, supra, at p. 796, 106 S.Ct. 3220, fn. omitted.)

 Although plaintiff brought his title VII claim in state rather than federal court, we are, of course, bound by the Supreme Court's interpretations of federal statutes.  (Rohr Aircraft Corp. v. County of San Diego (1959) 51 Cal.2d 759, 764, 336 P.2d 521, reversed on other grounds in Rohr Aircraft Corp. v. County of San Diego (1960) 362 U.S. 628 [80 S.Ct. 1050, 4 L.Ed.2d 1002].)  Accordingly, we cannot afford the findings of the City's personnel board preclusive effect for purposes of plaintiff's title VII claim unless those findings have been “reviewed” by the lower court within the meaning of Elliott, supra.

The Supreme Court has not explained what degree of review is necessary for state administrative findings to preclude a title VII claim.   In Elliott, there had been no review at all because the plaintiff had not sought any.   The court held the state determination had no preclusive effect.  (478 U.S. at p. 796, 106 S.Ct. 3220.)   In Kremer v. Chemical Construction Corp., supra, the findings had been reviewed on their merits and affirmed by the state court.   The Supreme Court held preclusion was appropriate.  (456 U.S. at p. 485, 102 S.Ct. 1883.)

This case falls between Elliott and Kremer in that plaintiff's mandamus challenge to the administrative determination was considered and denied by the lower court, but the court did not address the substantive merits of the challenge-whether or not plaintiff was properly terminated-because it resolved the matter based on laches.   In similar cases, federal courts applying Elliott and Kremer have concluded that the state court judgment affirming the administrative determination should preclude a title VII claim if the judgment would be considered a final judgment on the merits for res judicata purposes under state law.  (See, e.g., Bray v. New York Life Insurance (2d Cir.1988) 851 F.2d 60, 63-64 [dismissal of petition for judicial review of administrative decision on statute of limitations ground was judgment on merits under state law and barred title VII claim];  Brye v. Brakebush (7th Cir.1994) 32 F.3d 1179, 1183-1184 [voluntary dismissal of petition for judicial review of agency decision was not judgment on merits under state law and did not bar title VII claims].)  Consequently, even an adverse judgment which does not address the substantive merits of the case-such as one based on the statute of limitations-may be preclusive if it would be considered res judicata under state law.  (Bray, supra, at pp. 63-64.)   Accordingly, we must determine whether the lower court's denial of plaintiff's petition for mandamus based on laches would be considered a judgment on the merits for res judicata purposes under California law.

 We have found no California authority directly addressing whether a judgment based on laches is considered a judgment on the merits.   What we have found suggests it is not.   In a somewhat analogous context, the California Supreme Court has repeatedly stated that a dismissal for failure to prosecute “is not one upon the merits [citations] and it does not bar a subsequent action upon the same cause.  [Citations.]”  (Lord v. Garland (1946) 27 Cal.2d 840, 850, 168 P.2d 5;  accord Gonsalves v. Bank of America (1940) 16 Cal.2d 169, 172-173, 105 P.2d 118;  [“it is a fundamental rule that a judgment is not res judicata unless it is on the merits, and a dismissal for delay in prosecution is not.”];   see also Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 53, 92 P.2d 804 [dismissal for want of prosecution “is considered not on the merits and not a bar to another suit on the same cause of action, unless the record shows that there was an actual determination on the merits.”];   accord Stephan v. American Home Builders (1971) 21 Cal.App.3d 402, 406, 98 Cal.Rptr. 354;  Mattern v. Carberry (1960) 186 Cal.App.2d 570, 572, 9 Cal.Rptr. 137;  but see Minasian v. Sapse (1978) 80 Cal.App.3d 823, 827, 145 Cal.Rptr. 829 [dismissal for failure to prosecute “does reflect on the merits of the action” and constitutes a favorable termination for purposes of a subsequent malicious prosecution suit].)

Similarly, it has been held by at least one Court of Appeal that a judgment based on the statute of limitations “does not act as res judicata to preclude a subsequent action.”  (Koch v. Rodlin Enterprises (1990) 223 Cal.App.3d 1591, 1595, 273 Cal.Rptr. 438;  see also Finnie v. District No. 1-Pacific Coast Dist. etc. Assn. (1992) 9 Cal.App.4th 1311, 1320, 12 Cal.Rptr.2d 348.)   The court in the Koch case stated:  “Termination of an action by a statute of limitations is deemed a technical or procedural, rather than a substantive, termination.  [Citation.]”  (Koch, supra, at p. 1596, 273 Cal.Rptr. 438.)   It cited Lackner v. LaCroix (1979) 25 Cal.3d 747, 159 Cal.Rptr. 693, 602 P.2d 393, in which the Supreme Court held that “[a] bar raised by the statute of limitations does not reflect on the merits of the action and thus is not a favorable termination for purposes of a subsequent malicious prosecution action.”  (Id., at p. 752, 159 Cal.Rptr. 693, 602 P.2d 393.)   A judgment based on laches likewise has been held not to constitute a favorable termination for purposes of malicious prosecution.  (Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 837-839, 184 Cal.Rptr. 317;  see also Robbins v. Blecher (1997) 52 Cal.App.4th 886, 894, 60 Cal.Rptr.2d 815 [dismissal “on technical grounds, such as ․ laches,” is not a favorable termination “because it does not reflect on the substantive merits of the underlying claim.”].)

We have found one federal district court case holding that a judgment based on the statute of limitations is a judgment on the merits under California law.  (Santos v. Todd Pacific Shipyards Corp. (C.D.Cal.1984) 585 F.Supp. 482, 484.)   The court in Santos stated by way of analogy that “the California Supreme Court has held that the granting of a demurrer because an action is barred by laches is a judgment on the merits for res judicata purposes.”  (Ibid.) The court cited Keidatz v. Albany (1952) 39 Cal.2d 826, 249 P.2d 264.   In Keidatz, the plaintiffs brought an action for rescission of a property sale based on fraud.   The defendants successfully demurred on the ground of laches and obtained a judgment when the plaintiffs failed to amend.  (Id., at pp. 827-829, 249 P.2d 264.)

The Supreme Court held the judgment did not bar a second action to recover damages based on the same fraud.   The court stated a judgment following a demurrer is only a “judgment on the merits” to the extent it determines the facts pleaded do not state a cause of action.  (Keidatz v. Albany, supra, 39 Cal.2d at p. 828, 249 P.2d 264.)   In the second action, the plaintiffs had made a new allegation, i.e., that the property was worth less than the purchase price.   Therefore, the complaint now stated a cause of action for damages and the second action was not barred.  (Id., at p. 829, 249 P.2d 264.)

As is apparent, the only holding in Keidatz was that the judgment based on laches did not bar the subsequent suit, because it only adjudicated the sufficiency of the complaint.   The court did not indicate whether as a general matter a judgment based on laches would be considered a judgment on the merits, such that it would bar other claims asserting the same primary right.  (See generally Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682, 34 Cal.Rptr.2d 386, 881 P.2d 1083.)   For this reason, the court in Koch v. Rodlin Enterprises, supra, 223 Cal.App.3d 1591, 273 Cal.Rptr. 438, disagreed with the suggestion in Santos v. Todd Pacific Shipyards Corp., supra, 585 F.Supp. 482, that a judgment based on laches is a judgment on the merits.   In fact, the court in Koch held Santos was “wrongly decided” in holding that a judgment based on a statute of limitations has res judicata effect.  (Koch, supra, at p. 1596, 273 Cal.Rptr. 438.)

 The determination of the United States Supreme Court in Elliott, supra, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 that Congress did not intend unreviewed state administrative findings to bar a title VII claim, dictates that we proceed cautiously in finding such claims to be precluded and do so only where it is clear the judgment denying review of the findings would be considered a judgment on the merits.   In view of our preceding discussion, we cannot conclude a judgment based on laches would be considered a judgment on the merits under California law.   We therefore conclude the denial of plaintiff's mandamus petition did not bar his title VII claim.9

 d. Causal Connection;  Pretext***

B. Liability of the Individual Defendants.10, ***



The judgment is reversed with respect to plaintiff's title VII claim against the City. In all other respects, the judgment is affirmed.   The parties shall bear their own costs on appeal.


1.   The defendants objected to much of plaintiff's evidence.   However, there is no indication the court ever ruled on the objections.   Consequently, “for purposes of this appeal we must view the objectionable evidence as having been admitted in evidence and therefore as part of the record.”  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

2.   Plaintiff appears to suggest we should review the laches issue de novo because the facts are undisputed.   In view of the lower court's much greater familiarity with local calendar conditions and the practicability of bringing the mandamus action to trial if plaintiff had so desired, we confine our review to whether the court abused its discretion.

3.   At one time, section 1094.6 only applied to agencies whose governing boards adopted an ordinance or resolution making its provisions applicable.   In 1993, however, the Legislature deleted that requirement.  (Stats.1993, ch. 926, § 5, p. 4203.)

4.   The application to this case of issue preclusion, also referred to as collateral estoppel, is discussed post.

5.   We do not mean in rejecting plaintiff's argument to imply approval of the court's unexplained delay in ruling on the demurrer.

6.   Plaintiff does assert the personnel board refused to consider his evidence on the ground it was irrelevant.   However, exclusion of a party's evidence does not demonstrate the party did not have an adequate opportunity to litigate for purposes of collateral estoppel.   The remedy in such a case is to seek review under section 1094.5, which permits the court either to remand the matter for consideration of evidence erroneously excluded or to admit and consider the evidence itself.  (§1094.5, subd. (e).)

7.   As that question is not before us, we express no opinion on it.   There may be valid reasons for requiring an employee to exhaust both statutory and nonstatutory administrative remedies.

8.   For just this reason, it is evident that even under Westlake there is no necessary requirement that every FEHA plaintiff pursue an administrative mandamus proceeding as a prerequisite to bringing an action, or even recovering, under FEHA. Even if the administrative findings go unchallenged, they may not preclude a FEHA claim because they are not factually inconsistent with it.

FOOTNOTE.   See footnote *, ante.

9.   Some federal courts have concluded that laches is a defense to a title VII claim.  (See, e.g., Boone v. Mechanical Specialties Co. (9th Cir.1979) 609 F.2d 956, 959;  Herman v. South Carolina National Bank (11th Cir.1998) 140 F.3d 1413, 1427.)   The City did not argue that plaintiff was guilty of laches in prosecuting his title VII claim, as distinguished from his mandamus claim, and the lower court did not address the issue.   Given the special nature of a mandamus proceeding, different considerations may apply in determining whether there has been unreasonable delay in prosecuting a mandamus claim than would apply in the context of a title VII claim.   We therefore express no opinion whether the lower court's finding of laches with respect to the mandamus claim should support a conclusion plaintiff was guilty of laches in prosecuting his title VII claim.

FOOTNOTE.   See footnote *, ante.

10.   The respondent's brief purports to be filed only on behalf of the City and not the individual defendants.   We assume this is an oversight, since the brief asserts arguments against liability of the individuals as well as the City.

RICHLI, Associate Justice.

HOLLENHORST, Acting P.J., and WARD, J., concur.

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