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

Subramaniam BALASUBRAMANIAM, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

No. B123069.

Decided: January 25, 2000

Law Offices of Raymond P. Boucher and Raymond P. Boucher, Los Angeles, and Michel C. Eyerly, for Plaintiff and Appellant. Hausman, Sosa & Hudson, Jeffrey M. Hausman and Larry D. Stratton, Encino, for Defendants and Respondents County of Los Angeles and Martin Luther King, Jr./ Drew Medical Center. Littler Mendelson, Lester L. Jones, Douglas A. Wickham and Brandie N. Charles, Los Angeles, for Defendant and Respondent Charles R. Drew University of Medicine & Science.

Appellant Subramaniam Balasubramaniam, M.D., appeals from a judgment entered against him and in favor of respondents County of Los Angeles Department of Health Services (County);  Martin Luther King, Jr./Drew Medical Center (MLK/Drew);  and Charles R. Drew University of Science and Medicine (Drew).   We affirm in part and reverse in part.


Appellant contends that:  (1) The trial court should have applied the doctrine of res judicata to the findings of fact and conclusions of law reached by the Los Angeles County Civil Service Commission (Commission);  (2) the trial court made erroneous evidentiary rulings which prejudiced appellant;  and (3) the trial court erred in awarding costs to respondents.


The Commission's Findings and Order

On January 17, 1996, the Commission adopted the findings and recommendation of its hearing officer that appellant be given a genuine and equal opportunity to be promoted to the permanent position of chair of the department of emergency medicine at MLK/Drew.

The Hearing Officer's Definition of the Issues

The hearing officer defined the issues before her as follows:  “1. Was the appellant denied equal promotional opportunity to the position of chairman of the Department of Emergency Medicine, Martin Luther King, Jr./Drew Medical Center due to a pattern of discrimination based on race, ancestry, national origin, and/or whistle blowing? [¶] 2. If true, what is the appropriate remedy?”

The Hearing Officer's Statement of Facts

Appellant, an East Indian born in Sri Lanka, was hired in 1978 by the County as the associate division chief of emergency division at MLK/Drew.   At that time, there was no emergency department and no need for a chair.   Subsequently, as division chief, appellant developed curricula and clinical practices for the emergency department.

Appellant applied for department accreditation with the accreditation council for graduate medical education (ACGME).   The application was approved, and appellant became director of the residency program in 1980.   There was no board to certify physicians in emergency medicine until 1979 or 1980.   ACGME representatives who subsequently questioned appellant about his lack of board certification agreed that he had equivalent qualifications and there was no problem with his lack of board certification in his position as director of the residency program.

The statement of facts outlined appellant's attempts to assume the position of chair from 1984.   Dean Alfred Hanes, an African-American, remarked to appellant that since MLK/Drew is an African-American institution, appellant would be offered a position as chair only in order to groom an inexperienced African-American vice-chair, Dr. Caspar Glenn, for the permanent position.   Appellant declined the position, and Dr. Schlater, an African-American physician, was appointed as acting chair.   Medical Director Jim Haughton, an African-American, asked appellant to replace Schlater as the acting chair, but was forced to rescind his offer by hospital administrator William Delgardo, who believed that if a nonAfrican-American was in the position, the African-American community which the hospital served would riot.

In January 1991, MLK/Drew appointed 70-year old Dr. Shoemaker, a nonAfrican-American, whose experience was in the department of surgery, as the permanent chair.   Dr. Shoemaker's attempt to appoint appellant as the vice-chair was rejected because the hospital wanted an African-American permanent chair.   Instead, Dr. Hardin, an African-American, was given the position of vice-chair in order to be groomed for the permanent chair position.   During his tenure as vice-chair, Dr. Hardin added 10 points to the scores of African-American applicants for the department of emergency residency program in order to increase the number of African-American residents, to the exclusion of nonAfrican-American applicants.

In 1993, the ACGME notified MLK/Drew that it intended to withdraw accreditation of the residency program because, among other things, while Dr. Shoemaker had an excellent background in his field, he had limited emergency medicine practice experience.

After Dr. Shoemaker was removed, Dr. H. Range Hutson, an African-American who was not a civil service employee, was hired in January 1994 to fill the chair position.   No job postings for the position were distributed after Dr. Shoemaker's removal.   Appellant was never considered for the 1994 position, despite the fact that he was the highest ranking doctor in the department of emergency medicine, he was the most experienced faculty member, had currently and in the past been rated as “outstanding,” and had trained residents in emergency medicine since 1979.   While Dr. Edward Savage, a member of the selection committee, testified that he did not consider appellant because his residency had not been in emergency medicine, appellant completed his residency in surgery before emergency medicine was a recognized specialty in which residency training was available.   Moreover, Dr. Savage's testimony that appellant had no significant publications in emergency medicine was based on a 1978 resume.   Appellant's current resume showed approximately 50 publications in emergency medicine.   The selection committee did not seriously consider other nonAfrican-American members of the MLK/Drew Department of Emergency Medicine faculty who were board certified in emergency medicine and had outstanding credentials.

Soon after he assumed the position of acting chair, Dr. Hutson summarily discharged Dr. Kram, a White physician who worked with Dr. Shoemaker.   In the ensuing litigation, the director of human resources for MLK/Drew declared that Dr. Hutson, who was not a full-time civil service employee, had no direct control and supervision over County employees, and his actions could not be recognized.   In March 1994, Dr. Savage assumed the position of acting chair and was actively involved in attempting to eliminate the requirement that department chairs be civil servants.

The Hearing Officer's Analysis

The hearing officer found that appellant had presented a prima facie case of discrimination, and that the County's rationale for its failure to consider appellant for the position was pretextual.   The hearing officer did not believe Dr. Savage's explanation that appellant was not hired because the ACGME required department chairs to be board certified in the specialty of the department in which they served and because Dr. Savage found appellant to be lacking in other areas.

The sources upon which Dr. Savage relied for his understanding of the requirements stated to the contrary.   The ACGME standards stated that a chair must be either board certified or the equivalent, as interpreted by the ACGME board upon review of the candidate's curriculum vitae.   That same information was also conveyed to Dr. Savage by Glenna Case, the executive secretary for the ACGME.

The hearing officer specifically rejected Dr. Savage's argument that board certification was the primary issue for the ACGME, stating:  “Thus the primary issue for the ACGME was not board certification, but experience and involvement in emergency medicine necessary to the training of emergency medicine residents, along with a recognizable commitment to the field.”   Rather, the hearing officer concluded that Dr. Savage used board certification as an easy way to differentiate between appellant and Dr. Hutson.

The hearing officer found that for purposes of the chairmanship, the County and Drew are coemployers and agents because:  (1) The job announcement which preceded the appointment of Dr. Shoemaker stated, “ ‘This position involves a dual-appointment by the Medical Center and the Charles R. Drew University as Chief of Emergency Medicine Services and Chairman of the Department of Emergency Medicine, respectively’ ”;  (2) the members of the selection committee representing both entities acted jointly throughout the selection and hiring process;  and (3) the fact that actions of a representative of either entity with respect to the ACGME and the chairmanship of the emergency department would bind both entities.

The hearing officer concluded that race was a determining factor in the selection of a department chair in denying appellant the promotional opportunity he sought, and that on the basis of his qualifications and experience as acting chair, “that it is more likely than not that [appellant] would have been considered the most qualified member of the faculty for the job.   I also conclude that it is more likely than not that the ACGME would have considered [appellant's] qualifications to be at least equivalent to board certification.” 1

The Complaint

On December 23, 1996, appellant filed his second amended complaint (SAC) for:  (1) violation of the Fair Employment and Housing Act (employment discrimination on the basis of race and national origin);  (2) negligence;  and (3) intentional infliction of emotional distress against the County;  MLK/Drew;  Drew;  Robert Gates;  Walter Gray;  Edward Savage, M.D.;   Edward Renford;  Jarron Gammons;  Reed Tuckson, M.D.;   and Roy Wilson, M.D.2

The SAC's basic allegations mirrored the findings of fact of the hearing officer.   Additionally, the SAC alleged that Robert Gates, the director of the Department of Health Services, appointed H. Range Hutson, M.D., an African-American, to the position of chair.   Dr. Hutson was a former student of appellant and was not a civil service employee, which was a requirement for the position.   Respondents did not comply with civil service rules requiring advertising of the job and pay based on a published schedule.   Rather, Dr. Savage, Edward Renford (administrator of MLK/Drew), Dr. Reed Tuckson (president of Drew University), and Dr. Roy Wilson (dean of Drew University) agreed to pay Dr. Hutson an annual salary amounting to over $250,000, far beyond the amount a civil service physician could be paid under civil service guidelines.   The additional funds for Dr. Hutson's salary were improperly taken from the service and supply item of the budget.

Shortly after he assumed the position of chair, Dr. Hutson was removed for improperly firing a faculty member and verbally abusing the former chair.   Dr. Hutson was replaced with Dr. Savage, an African-American.   Dr. Savage is a gynecologist and was not board qualified under ACGME standards for chair of emergency medicine.

Appellant filed a complaint for promotional discrimination with the California Department of Fair Employment and Housing (DFEH), claiming that he was denied the appointment to the position of chair of the department of emergency medicine because he is not African-American.   The DFEH issued a notice of case closure and a right-to-sue letter.   Appellant alleged that the acts of respondents violated Government Code section 12900 et seq., and therefore requested an award of attorney fees against respondents.

The SAC prayed for compensatory damages including loss of wages and other economic damage according to proof;  for non-economic damages, according to proof;  for costs of suit;  for punitive damages against the non-public entity defendants;  and for attorney fees.

Procedural Posture

Appellant's motion for judgment on the pleadings was denied by the Honorable David A. Workman.3  The parties subsequently stipulated to have the action heard by Retired Associate Justice of the Court of Appeal Robert R. Devich, as general referee.

Justice Devich refused to apply res judicata principles or allow admission of the Commission's final decision.   On January 5, 1998, Justice Devich issued his statement of decision recommending entry of judgment in favor of the respondents.   On March 4, 1998, the trial court issued an order approving the statement of decision.   On April 27, 1998, Drew filed a memorandum of costs in the amount of $8,414.38.   On April 20, 1998, the County filed a memorandum of costs in the amount of $22,299.40.

This appeal followed.


Whether the doctrine of res judicata should have been applied to the findings of fact and conclusions of law reached by the CommissionA. Whether the Commission's findings were final

Appellant urges that the Commission's findings are binding on the subsequently filed lawsuit, citing Code of Civil Procedure section 1094.5,4 and relying on cases which apply res judicata principles to actions which fall under section 1094.5.   Respondents, on the other hand, argue that section 1094.5 is inapplicable, and that the trial court did not err in refusing to apply res judicata.   We conclude that although section 1094.5 is inapplicable, the doctrine of res judicata should have been applied to the instant action.

Section 1094.5, subdivision (a) provides that:  “Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury.”   Section 1094.6, subdivision (b) provides that judicial review may be had if a petition is filed not later than the 90th day following the date on which the decision becomes final, and the decision is final upon the expiration of the period during which reconsideration can be sought.

 Thus, section 1094.5 requires that a petitioner must file a writ of administrative mandate to exhaust judicial remedies prior to seeking a judicial forum in cases where a hearing is required to be given and evidence is required to be taken.  (Keeler v. Superior Court (1956) 46 Cal.2d 596, 297 P.2d 967 [where neither statute nor state personnel board's rules required a hearing, the scope of administrative review is not governed by section 1094.5].) Where a party fails to challenge a quasi-judicial decision by an administrative tribunal by administrative mandamus pursuant to section 1094.5, that failure gives collateral estoppel effect to the administrative agency's decision.  (McDaniel v. Board of Education (1996) 44 Cal.App.4th 1618, 1621, 52 Cal.Rptr.2d 448.)   In other words, the administrative decision has “ ‘achieved finality due to the aggrieved party's failure to pursue the exclusive judicial remedy for reviewing administrative action.’ ”  (Ibid.)

Section 1094.5, however, is not applicable in all situations involving administrative hearings.   Case law holds that if an agency has discretion to grant a hearing and due process does not require a hearing, section 1094.5 does not apply even if a hearing is granted.  (Weary v. Civil Serv. Com. (1983) 140 Cal.App.3d 189, 195, 189 Cal.Rptr. 442.)

 Our examination of the circumstances here reveals that section 1094.5 does not govern this case.   Los Angeles County Code, Appendix to Title 5, otherwise known as Los Angeles County Civil Service Rules (Rules) provides at Rule 4.03, subdivision (A) that a hearing is required where a discharge, reduction or suspension is at issue:  “In cases of discharge or reduction of a permanent employee ․ or suspension in excess of five days, a timely petition for hearing shall be granted if it states sufficient specific facts and reasons in support of the employee's appeal․”   On the other hand, Rule 4.03, subdivision (B) provides that “In all other cases ․ the commission may, at its discretion, grant a hearing or make its decision on the merits based on a review of written materials submitted by the parties concerned.” 5

 Appellant complains of discrimination in the promotion practices of respondents;  he does not allege that he was wrongfully suspended or fired.   We conclude that since he was not suspended, reduced or discharged, a hearing was not required under Rule 4.03, subdivision (A), and section 1094.5 does not apply;  rather, section 1085 applies.  “Of the two types of review by mandate, ordinary mandate (Code Civ. Proc., § 1085) rather than administrative mandate (Code Civ. Proc., § 1094.5) is the type applicable here, since ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.   Judicial review by way of administrative mandate is available only if the decision resulted from a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the agency.  [Citation.]   When review is sought by means of ordinary mandate, generally the court's inquiry is limited to whether the decision was arbitrary, capricious, or entirely lacking in evidentiary support.  [Citation.]”  (DeCuir v. County of Los Angeles (1998) 64 Cal.App.4th 75, 81, 75 Cal.Rptr.2d 102.)

In support of his argument that the finding of the Commission is binding on the parties under res judicata principles and section 1094.5, appellant cites several cases.   None of the cases cited by appellant or by respondents are on point with the fact pattern before us, but they do serve to impart some support for our ultimate conclusion that res judicata applies.

In Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, 244 Cal.Rptr. 764 (Knickerbocker), plaintiff, a police officer who was fired by the city from the position of lieutenant, challenged his firing before the City of Stockton Civil Service Commission, which ordered him reinstated at the lower rank of sergeant, with back pay.   Plaintiff did not seek review of the commission's determination that there were grounds for disciplining him, but filed a claim for damages, alleging violation of an implied-in-fact covenant not to fire him without good cause, among other things, and intentional infliction of emotional distress.

The Third District recognized that judicial exhaustion “is a species of res judicata” and “governs what may be litigated.”  (Knickerbocker, supra, 199 Cal.App.3d at p. 241, 244 Cal.Rptr. 764.)   Administrative exhaustion, on the other hand is a rule of procedure, and jurisdiction.  (Ibid.) The court stated:  “Res judicata ․ deals with the preclusive effects of judgments in civil proceedings.   It has a dual aspect.   In its primary aspect the doctrine operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.   Its secondary aspect comes into play in situations involving a suit, not necessarily between the same parties, based upon a different cause of action.   There the prior judgment is not a complete bar but it operates against the party against whom it was obtained as an estoppel or conclusive adjudication as to those issues in the second action which were actually litigated and determined in the first action.  [Citation.]   The secondary aspect is commonly referred to as collateral estoppel and is called issue preclusion by the Restatement Second of Judgments.  [Citation.]   The doctrine of collateral estoppel bars the relitigating of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity.  [Citation.]”  (Id. at p. 242, 244 Cal.Rptr. 764.)   That is, “[u]nless the administrative decision is challenged, it binds the parties on the issues litigated․”  (Id. at p. 243, 244 Cal.Rptr. 764.)

In that case, the Third District found that the plaintiff had failed to exhaust judicial remedies as to the commission's order reinstating him at the demoted level of sergeant because he did not bring a writ proceeding based on that order.   However, the court held that since the commission had ruled that the city had improperly terminated the plaintiff, he could seek damages for “ ‘severe anxiety, worry, mental, physical and emotional distress' ” for his improper firing by the County.  (Knickerbocker, supra, 199 Cal.App.3d at p. 245, 244 Cal.Rptr. 764.)

Knickerbocker does not assist appellant's argument since, in Knickerbocker, the plaintiff's grievance was based on his termination, which under section 1094.5 and Rule 4.03, subdivision (B) is a circumstance requiring a hearing.   Therefore, the application of section 1094.5 as well as its res judicata effects were unquestionable in that case.

Appellant also cites Barndt v. County of Los Angeles (1989) 211 Cal.App.3d 397, 400, 259 Cal.Rptr. 372 (Barndt ), where plaintiff, a cardiac physician, claimed he suffered discrimination when he was not promoted to a permanent position in the cardiology section at the Los Angeles County/USC Medical Center.   The county violated the terms of a settlement agreement entered into between it and plaintiff, but on plaintiff's request for a hearing, the commission determined that the county had not discriminated against the plaintiff.   Subsequently, the plaintiff brought a lawsuit for specific performance and a petition for writ of mandamus under section 1085 to have the trial court enforce the terms of the settlement agreement.   As to the writ, the trial court found that plaintiff had failed to establish discrimination.   As to the lawsuit, the county filed a demurrer to the third amended complaint claiming that the trial court's findings in the writ proceedings precluded plaintiff from again asserting the validity of the settlement agreement.

This division held that “this is not a case involving the discharge of an employee in violation of antidiscrimination or other statutes which mandate reinstatement.   The Civil Service Commission's findings are determinative on this issue.   What is involved here, however, is a purely contractual dispute, which may best be resolved in an action for damages.   Plaintiff's status as a ‘public employee’ does not alter our conclusion in this regard.   Any rights which flow from such employment already have been vindicated in the civil service proceedings.   The issues raised therein have been fully litigated and may not be asserted here under the guise of an action for specific performance.”  (Barndt, supra, 211 Cal.App.3d at p. 406, 259 Cal.Rptr. 372, fn. omitted.)

That case is not like the present case.   In Barndt, we affirmed the trial court's dismissal of the matter by finding that the plaintiff's remedy was limited to an action at law, and that an action for specific performance to enforce the terms of the settlement agreement was not available since an agreement to perform personal services cannot be enforced.   (Barndt, supra, 211 Cal.App.3d at p. 405, 259 Cal.Rptr. 372.)

In Los Angeles County Dept. of Parks & Recreation v. Civil Service Com. (1992) 8 Cal.App.4th 273, 278, 10 Cal.Rptr.2d 150, the commission held a hearing and determined that the employee had suffered promotional discrimination.   The employer, Parks and Recreation, petitioned the superior court for a writ of mandate, which it issued.   Division Five of this District held that whether the employer petitioned under section 1094.5 or under section 1085, traditional mandamus, the superior court was not entitled to independent review, but must determine whether substantial evidence supports the commission's findings.  (8 Cal.App.4th at p. 279, 10 Cal.Rptr.2d 150.)   Again, that case does not parallel ours because there, the employer petitioned for writ of mandate.

Here, in refusing to give collateral estoppel effect to the commission's ruling, Justice Devich cited Swartzendruber v. City of San Diego (1992) 3 Cal.App.4th 896, 5 Cal.Rptr.2d 64 (Swartzendruber ) for the proposition that title VII actions (42 U.S.C. section 1983;  hereafter title VII), and therefore Fair Employment and Housing Act (FEHA) actions, are not subject to administrative res judicata or issue preclusion.   In Swartzendruber, the plaintiff's termination from the San Diego Police Department was upheld by the commission.   Subsequently, Swartzendruber did not file a petition for writ of administrative mandamus pursuant to section 1094.5, but filed a charge of sex discrimination and retaliation with the DFEH and the federal Equal Employment Opportunity Commission (EEOC).   She received right-to-sue letters from both agencies, and subsequently filed a lawsuit for (1) breach of statutory duty;  (2) intentional infliction of emotional distress;  (3) fraud and deceit;  (4) sex discrimination;  (5) violation of title VII and 42 United States Code section 1985;  and (6) violation of public policy.   The trial court sustained the city's demurrer to all causes of action except the fourth and fifth causes of action on the grounds that Swartzendruber failed to pursue her remedies by not filing a petition for a writ of administrative mandamus pursuant to section 1094.5.   The trial court granted summary judgment on the remaining claims on the basis that her claims for sex discrimination and violation of civil rights were barred by the doctrine of res judicata.

The appellate court found that plaintiff's failure to seek writ review rendered the commission's adjudication a final and binding one as to all the causes of action except sex discrimination.   As to the sex discrimination cause of action, the court found that because the pleading encompassed conduct that occurred before the termination, and was not part of the termination, and because plaintiff chose to complain to the EEOC and the DFEH, rather than to the Commission, thereby fulfilling the prerequisite for bringing a civil suit on a statutory cause of action, plaintiff should not be barred from pursuing her sex discrimination cause of action.  (Swartzendruber, supra, 3 Cal.App.4th at pp. 909-910, 5 Cal.Rptr.2d 64.)   However, the court noted that had Swartzendruber filed a petition for writ of administrative mandamus under section 1094.5 and suffered an adverse ruling, that ruling would have barred her FEHA lawsuit.  (Swartzendruber, supra, at p. 911, fn. 9, 5 Cal.Rptr.2d 64.)

On the other causes of action, the appellate court found that the trial court had been correct in applying principles of res judicata to issues which had been considered or could have been considered by the trial court.   (Swartzendruber, supra, 3 Cal.App.4th at p. 908, 5 Cal.Rptr.2d 64.)   Thus, contrary to respondents' interpretation, and Justice Devich's ruling, the case does not stand for the flat statement that title VII actions are never bound by prior state administrative decisions.   Rather, the court found that Swarzendruber's sex discrimination action was never adjudicated by the commission, and the FEHA route was an entirely proper avenue for her to pursue.

The instant case is like none of those cited above.   However, we find Oquendo v. California Institution for Women (1989) 212 Cal.App.3d 520, 260 Cal.Rptr. 688 to be persuasive.   In that case, a probationary teaching employee for the California Institute for Women was not appointed to a permanent teaching position because his epilepsy attacks had increased due to stress from the job.   The plaintiff brought an administrative hearing before the State Personnel Board, which denied his claim.   Instead of petitioning for mandate, plaintiff filed an action under the FEHA. The court found that plaintiff had chosen the forum, and should have followed through by seeking judicial review of the decision.   The court concluded that the administrative decision had become final and thus collaterally estopped the plaintiff from relitigating the validity of the hearing or its adjudication in this proceeding.  (Id. at p. 523, 260 Cal.Rptr. 688.)

Here, appellant requested a hearing before the Commission, which adopted the recommended decision, findings of fact, and conclusions of law of its hearing officer, essentially ruling that appellant had been discriminated against on account of his race.   Neither appellant nor respondents filed a petition for writ of mandamus under either section 1085 or 1094.5.   Since the discriminatory act alleged was failure to consider for promotion rather than termination, reduction or suspension, a hearing was not required under Rule 4.03, subdivision (A), and therefore, the parties need not have filed a petition for a writ of mandamus under section 1094.5.

 Appellant then brought a lawsuit for damages under the FEHA alleging the same primary right (unlike the plaintiff in Swartzendruber, who brought an entirely new action based on sex discrimination) but requesting damages, attorney fees and punitive damages.   The County's failure to file a petition for writ of administrative mandamus under section 1085 should not give it an opportunity to relitigate the question of promotional discrimination when appellant filed his complaint for damages based upon the same primary rights.   Because the parties had the opportunity to fully and fairly litigate the matter before a hearing officer, any fears that an abbreviated, unjust hearing took place, are allayed.   Moreover, it would be incongruous if a matter serious enough to warrant administrative proceedings under section 1094.5 would be considered final if a writ of mandate were not pursued, while lesser matters would not be accorded the same res judicata effect.   Thus, finality principles and the res judicata doctrine bar respondents from relitigating the issues.

County cites State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 217 Cal.Rptr. 16, 703 P.2d 354 for the proposition that proceedings before the DFEH were not precluded by previous civil service decisions of the State Personnel Board.   However, in that case the California Supreme Court recognized that “the purpose of the Civil Service Act is to ensure that appointments to state office are made not on the basis of patronage, but on the basis of merit, in order to preserve the economy and efficiency of state service;  and that by contrast, the purpose of the FEHA is to provide effective remedies for the vindication of constitutionally recognized civil rights and to eliminate discriminatory practices that violate those rights.”  (Id. at p. 439, 217 Cal.Rptr. 16, 703 P.2d 354.)   Moreover, recognizing that two agencies may arrive at conflicting adjudications concerning the same set of facts, the court stated that “If the FEHC is satisfied that a particular issue presented to it was sufficiently explored and decided by the Board, then it may, in comity, bar relitigation of the issue.”   (Id. at p. 443, 217 Cal.Rptr. 16, 703 P.2d 354.)   One concern the court had with decisions made by the board was that not all hearings were formal but were short, two-hour hearings, not subject to cross-examination, with no hearing officer and no decisions rendered.   Here, on the other hand, the record showed that a hearing officer was appointed by the Commission, and that extensive testimony, evidence and findings were rendered.

Nor does University of Tennessee v. Elliott (1986) 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (Elliott) stand for the proposition that FEHA actions are not bound by prior state actions, as urged by the County.

In Elliott, a terminated employee of the University of Tennessee (University) requested a hearing under the Tennessee Uniform Administrative Procedures Act, and prior to the administrative hearing, filed a lawsuit for relief under title VII of the Civil Rights Act of 1964, 42 United States Code section 2000e, and 42 United States Code section 1983.

The administrative law judge (ALJ), an administrative assistant to the University's vice-president for agriculture, held that he lacked jurisdiction to adjudicate the federal civil rights claims, but allowed the employee to present the affirmative defense that the charges against the employee were motivated by racial prejudice.   The ALJ found that the University had proved that some, but not all, of the charges were racially motivated, and ordered the employee transferred to a new assignment.   The University's vice-president for agriculture affirmed the ALJ's ruling.

In affirming the Court of Appeals for the Sixth District, as to its ruling that the employee's title VII action could be tried de novo in federal court, the United States Supreme Court stated that “Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims.”  (Elliott, supra, 478 U.S. at p. 796, 106 S.Ct. 3220, 92 L.Ed.2d 635.)   It is to this statement that respondents pin their hopes on, analogizing title VII claims to FEHA claims.   However, we conclude that respondents' argument does not avail them.

The Elliott court reached its conclusion by relying on Kremer v. Chemical Construction Corp. (1982) 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262, which stated:  “Since it is settled that decisions by the [Equal Employment Opportunity Commission] do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a State's own courts.”  (Elliott, supra, 478 U.S. at p. 793, 102 S.Ct. 3220, 92 L.Ed.2d 635, second italics added.)

As the emphasized clause in the preceding paragraph shows, Elliott's holding applies only to federal review.   A state court may give preclusive effect to an unreviewed administrative determination.

Moreover, in support of its holding that “Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims” (Elliott, supra, 478 U.S. at p. 796, 102 S.Ct. 3220, 92 L.Ed.2d 635), the United States Supreme Court cited to Alexander v. Gardner-Denver Co. (1974) 415 U.S. 36, 48, 94 S.Ct. 1011, 39 L.Ed.2d 147) as follows:  “ ‘[T]he legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.’ ”  (Id. at p. 796, 102 S.Ct. 3220, 92 L.Ed.2d 635, fn. omitted.)   Of utmost importance to Congress was the individual's pursuit of rights, which would be promoted in the instant case, by giving the Commission's ruling preclusive effect where the respondents did not seek review.

Accordingly, res judicata principles should have been applied to bind the parties to the Commission's final findings.

B. Whether the Commission's order can be considered final

 The County further argues that the order of the Commission cannot be considered “final” for purposes of res judicata, citing Ragan v. City of Hawthorne (1989) 212 Cal.App.3d 1361, 261 Cal.Rptr. 219, for the proposition that the statute of limitations applicable to a writ of mandamus under section 1085 depends upon the nature of the obligation sought to be enforced.   Accordingly, the County urges that the three-year limitations period for actions arising from a statutory obligation under section 338 applies and therefore the order is not final.

We disagree.   In Ragan, supra, the plaintiff petitioned the trial court for a writ of mandate to compel the city manager to conduct an evidentiary hearing on the city's denial of her application for an industrial disability pension.   Division Five of this District held that the trial court's application of the 30-day statute of limitations contained in Government Code section 11523 was improper because the plaintiff was not seeking to review a hearing but to compel one.   Since there was no administrative record to review, and since Government Code section 11523 by its terms did not apply, the court held that the applicable three-year statute of limitations for an action upon a liability created by statute (plaintiff's statutory right to a pension) applied.

The case at bar is distinguishable.   The limitations period for proceedings subject to the Administrative Procedure Act (APA) (Gov.Code, §§ 11500-11528) are determined by Government Code sections 11519, 11521 and 11523.  (Economic Empowerment Foundation v. Quackenbush (1998) 65 Cal.App.4th 1397, 1404, 77 Cal.Rptr.2d 390.)   Government Code section 11519 provides that the decision shall become effective 30 days after it is delivered or mailed to respondent, unless a reconsideration is ordered.   Government Code section 11521 provides that the agency may order a reconsideration within 30 days after the decision is delivered or mailed to respondent.   Government Code section 11523 provides that a petition for writ of mandate must be filed within 30 days after the last day on which reconsideration can be ordered.

The Department of Health Services is one of the agencies subject to the APA (Gov.Code, § 11501), and appellant did go through the procedural steps of an administrative hearing.   The record shows that on January 17, 1996, the Commission adopted the findings and recommendation of its hearing officer.   On January 24, 1996, a notice of final Commission action, along with the order, was mailed to all parties.   No petition for mandate was ever filed.   Therefore, Government Code section 11523 did apply, and the matter became final 30 days after the decision was mailed to the respondents.   On that basis, we cannot agree with the County's argument that res judicata does not apply.

C. Whether Drew was in privity with the County

 “[P]rivity exists where the person involved is ‘ “․ so identified in interest with another that he represents the same legal right.” ’  [Citation.]”  (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 951, 126 Cal.Rptr. 805, 544 P.2d 941.)   Persons in privity with parties subject to a judgment are bound by the same ruling.  (Ibid.)

 The hearing officer concluded that the County and Drew were acting jointly with administrators at Drew, or as agents of one another, in relation to the chairmanship of the department of emergency medicine at MLK/Drew.   Drew urges that it was not in privity with the County, and therefore, the Commission's order cannot apply to it.   On appeal, appellant urges that Drew was in privity with the County because the employees making the hiring decisions held positions in each entity.   That is, Dr. Savage was both the medical director for County and the dean for Drew;  and Drs. Haughton, Touread and Hardin held positions with both entities.   Moreover, the County and Drew worked jointly to appoint the chair in that the medical director of the hospital, a County employee, and the executive committee and dean of Drew have the ability to recommend the chair to the County.   Similarly, at trial, counsel urged that Drew was an agent of the County for the purpose of chairmanship.

The evidence tends to support the hearing officer's findings that Drew acted as an agent of the County for the purposes of hiring a chair for the emergency department.   A survey report generated by the ACGME states that:  “MLK hospital is a county facility.   Los Angeles County contracts with the Drew Medical School to provide educational leadership and to ensure quality of care at MLK. Faculty are reimbursed with dollars from the Drew School of Medicine for their academic pursuits and by the county for their service-related activities.   There is also a medical education and research agreement whereby the School of Medicine is responsible for clinical research performed in the hospital.   There are county auditors who provide quarterly reports of these activities to the director of the Department of Health Systems.  [¶] It is the responsibility of the Drew School of Medicine to recruit and select Chairmen.   However, there must be concurrence with the Medical Director and Hospital Administrator of the MLK Hospital.   This process is implemented when the President of the Medical School appoints a search committee and the medical director of the hospital appoint[s] one member each to that committee.”

The record also shows that the County and Drew placed an ad in the New England Journal of Medicine which described the position as a joint position with Drew and the County.   The ad states:  “APPLICATIONS ARE INVITED-For the position of Professor and Chair of the Department of Emergency Medicine, Charles R. Drew University of Medicine and Science/King Drew Medical Center, Los Angeles, California.   The mission of Drew University encompasses education, patient care, and research in the context of care to the underserved populations.   Candidates should have qualifications to concur with this mission.   In addition, board certification and several years experience in emergency medicine is required.   Candidates should exhibit strong clinical leadership and administrative experience in academic medicine as well as a notable background in clinical service, teaching and research․”   The ad noted a return address to Drew.

Nor are we convinced otherwise by County's citation to Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 43 Cal.Rptr.2d 774 for the proposition that the County and Drew, in the operation of MLK/DREW, are not “agents” of one another in administering the position of chair of the emergency department.   Division One of this District held that, in respect to hiring of the chair, the County and Drew are two appointing powers, which jointly confer a “dual appointment” on the chair.   It also stated that for the purpose of firing, while civil service rules govern the removal of persons from County employment, Drew's bylaws vest such discretion in its president.  (Id. at pp. 628-629, 43 Cal.Rptr.2d 774.) 6  Shoemaker does not stand for the proposition that Drew cannot act as an agent for the County in exercising its dual appointment powers.

We conclude that the hearing officer's finding that Drew was an agent of the County is res judicata, and that, in any event, the evidence tends to show that Drew was in privity with the County on the issue of chairmanship of the emergency department.  (Barber v. Retirement Board (1971) 18 Cal.App.3d 273, 278-279, 95 Cal.Rptr. 657 [Civil service commission's finding that plaintiff was medically qualified was res judicata to the Retirement Board of the City and County of San Francisco because the Board acts as an agent of the city and is bound by the commission's decision if the city is bound.].) Therefore, even though Drew was not a party to the hearing before the civil service board, as a party in privity, it is bound by the decision.   (Armstrong v. Armstrong, supra, 15 Cal.3d at p. 951, 126 Cal.Rptr. 805, 544 P.2d 941.)

D. Whether the trial court made erroneous evidentiary rulings which prejudiced appellant and erred in awarding costs to respondents

Having concluded that the trial court erred in failing to apply res judicata to preclude relitigation of issues, we need not reach the claim by appellant that the trial court erred in its evidentiary rulings as to respondent County.   Moreover, the order of costs in favor of the County and Drew, imposed pursuant to section 1032, is reversed.

We conclude that the matter shall be remanded as to the issue of damages.   As appellant appears to have abandoned his cause of action for intentional infliction of emotional distress, the judgment is affirmed as to the dismissal of that cause of action.


The matter is reversed and remanded with directions to the trial court to apply the doctrine of res judicata and to find in favor of appellant with respect to the issue of employment discrimination in accordance with the views expressed in this opinion.   The trial court is ordered to try the matter on the issue of damages incurred by appellant.   The judgment is affirmed as to the dismissal of the cause of action for intentional infliction of emotional distress.

The order of costs in favor of the County and Drew, imposed pursuant to Code of Civil Procedure section 1032, is reversed.

Appellant is awarded costs of appeal.


1.   Oddly enough, the hearing officer concluded that appellant failed to prove discrimination based on ancestry and national origin, as well as whistle-blowing.   Even though her findings on ancestry and national origin seem inconsistent with her ultimate finding that appellant was discriminated against on the basis of race, neither party has raised the issue.   We conclude that her findings and recommendation clearly support the conclusion that appellant was subjected to race discrimination.

2.   The individual defendants are not parties to this appeal.

3.   Upon this court's request, appellant filed a copy of the order on the motion for judgment on the pleadings.   The order reflects only that the trial court granted judgment as a matter of law in favor of Savage, Renford, Gates and Gray. Contrary to appellant's assertion on appeal, no mention is made of a ruling based on res judicata principles.

4.   All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

5.   Rule 4.07 provides that a petitioner shall be entitled to be represented by counsel;  testify under oath;  subpoena witnesses;  cross-examine witnesses;  cross-examine all employees of the Commission who have investigated the matters;  impeach any witness;  present affidavits, exhibits, and other evidence;  and argue the case.   The hearing is formal, but with relaxed rules of evidence.   Rule 4.10 provides:  “Evidence.   A. The hearing shall be formal, but need not be conducted according to technical rules relating to evidence and witnesses.   Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence or objection in civil actions.  [¶] B. Hearsay evidence may be admitted for any purpose, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.   The rules of privilege and of official or judicial notice shall be effective to the same extent as in civil actions.   Irrelevant and repetitious evidence shall be excluded.   Oral evidence shall be taken only under oath or affirmation.”According to Rule 25.01, employment practices, “A. No person in the classified service or seeking admission thereto shall be appointed, reduced or removed, or in any way favored or discriminated against in employment or opportunity for employment because of race, color, religion, sex, physical handicap, medical condition, marital status, age, national origin or citizenship, ancestry, political opinions or affiliations, organizational membership or affiliation, or other non-merit factors, any of which are not substantially related to successful performance of the duties of the position.  ‘Non-merit factors' are those factors that relate exclusively to a personal or social characteristic or trait and are not substantially related to successful performance of the duties of the position.   Any person who appeals alleging discrimination based on a non-merit factor must name the specific non-merit factor(s) on which discrimination is alleged to be based.   No hearing shall be granted nor evidence heard relative to discrimination based on unspecified non-merit factors.”

6.   The court stated:  “We do not question that Shoemaker had a ‘dual appointment’ to the respective emergency medical departments of the University and the Medical Center.   We also understand that one person typically occupies both positions.   That does not lead to the conclusion, however, that the University was subject to civil service rules or that Shoemaker's dual appointment brought his University position within the reach of the civil service system.  [¶] Inherent in the concept of a ‘dual’ appointment is the existence of two appointing powers-here, the Medical Center (operated by the County) and the University.   Shoemaker has not established that the Medical Center and the University disregarded each other's separateness with respect to his administrative positions.   Indeed, the PSA bylaws expressly stated that Shoemaker's administrative position at the Medical Center ‘does not reflect an academic appointment by the medical school but an appointment to a County Civil Service position which can only be made by the Director of Health Services who is the appointing power.’   Moreover, Shoemaker cites nothing in the record indicating that the two institutions were required to appoint or retain the same person to head their respective departments.   That they did so in this case does not mean Shoemaker had only one employer (i.e., the County) or that he held a single position (i.e., one covered by civil service rules).  [¶] Consistent with the concept of a dual appointment, Shoemaker was removed from each position by the appropriate ‘appointing power’:  the University president removed him from the academic post by letter of December 17, 1993, and the director of health services removed him from the Medical Center post by letter of December 23, 1993.”  (Shoemaker v. County of Los Angeles, supra, 37 Cal.App.4th at pp. 628-629, 43 Cal.Rptr.2d 774, italics and fn. omitted.)


BOREN, J., and MALLANO, J.*, concur.