section 8. In addition, they seek attorneys' fees under California Code of Civil Procedure § 1021.5 and Government Code § 800.
A. Collateral Estoppel
Plaintiffs concede that the language of prohibited discrimination under section 8 parallels the equal protection clause of the fourteenth amendment to the United States Constitution. In the Davis II litigation, the legality of the consent decree, and in particular of the mandatory promotions pursuant to paragraph 16, was upheld against federal equal protection challenges under a standard of strict scrutiny. Consistent with the discussion above, plaintiffs are collaterally estopped from challenging any deprivations of equal employment opportunity arising from implementation of the consent decree.
Moreover, as above, challenges to the June 1988 promotions are time-barred by the statute of limitations governing actions for personal injury.
Plaintiffs seek to avoid the effects of collateral estoppel by arguing that although section 8 mirrors the protection provided by the fourteenth amendment, "it provides separate state protections for citizens of California." Pl. Opp. at 18 (emphasis in original). This distinction is irrelevant for the purposes of issue preclusion. The plaintiffs in this suit, as white males who were denied promotions to the rank of lieutenant in June 1988, have already had their rights to equal protection asserted by Local 798 and considered by this court and by the Ninth Circuit. There are no broader rights accorded by section 8 which require that the court revisit the issue of the legality of the consent decree or the implementation of paragraph 16.
B. Pre-emption by FEHA
Even if this claim were not barred by collateral estoppel, it would be preempted. Plaintiffs' factual allegations under section 8 are the same as those contained in their claim under FEHA. However, the California Court of Appeal has stated that "FEHA prohibitions on employment discrimination are not a codification of preexisting common law doctrine," and that even if a common law cause of action existed before a cause of action was identified in FEHA as an unlawful employment practice, "the Legislature has made clear its intent to 'occupy the field of regulation of discrimination in employment' by virtue of the FEHA." Ficalora v. Lockheed Corp., 193 Cal. App. 3d 489, 492, 238 Cal. Rptr. 360 (1987) (holding that employee's sole cause of action for retaliatory discharge is statutory). Plaintiffs' state cause of action for employment discrimination is therefore governed by FEHA and the requirement of administrative exhaustion.
C. Remaining Claims
As to allegations of actions and events not barred by the statute of limitations, they exceed the "scope of the charge" of the FEHA complaint, see above at Section I.C., and will not be addressed by the court for failure to exhaust administrative remedies.
Plaintiffs clearly have felt continually aggrieved by the implementation of the consent decree approved in May 1988, and by the June 1988 promotions that it mandated. They seek by this action to reopen and relitigate the issue of the legality of the decree with respect to non-minority firefighters, an issue vigorously and fully litigated on their behalf by Local 798, and finally decided by this court and by the Ninth Circuit. The court finds that relevant statutes of limitations, the doctrine of collateral estoppel, rules of pleading, requirements of standing, and the facts, which plaintiffs themselves concede, preclude this action.
Defendants' and defendant-intervenors' motion for summary judgment as to all causes of action is therefore GRANTED.
IT IS SO ORDERED.