(Ventura County Super. Ct. No. 285673). Frederick H. Bysshe, Judge.
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
A college district fires its police officer employee. The police officer files a federal civil rights action and petition for administrative mandamus in federal court. The federal district court dismisses the action without prejudice.
Here we hold the statute of limitations applicable to the state action was tolled under 28 United States Code section 1367.
Plaintiff Larry Guevara appeals a judgment after the trial court sustained a demurrer without leave to amend on his wrongful employment termination action against defendants Ventura County Community College District (the District), the Personnel Commission of the Ventura County Community College District (the Commission), James Botting, James Mesnek, Bill Studt and Sue Johnson. We conclude, among other things, that Guevara's action is not barred by the statute of limitations. It was filed within the 30-day federal tolling period for civil rights actions (42 U.S.C. § 1983) which have been dismissed because they were filed prematurely in federal court. (28 U.S.C. § 1367(d).) We reverse.
Guevara was a police officer employed by the District. He was also the president of the Ventura County Community College Peace Officers' Association (POA). On behalf of the POA, he complained about corruption, mismanagement and discrimination committed by campus police department supervisory personnel.
On July 21, 2005, the District notified Guevara that he had committed misconduct and terminated his employment. Guevara appealed.
A hearing officer ruled that there was no cause for his termination and he should be reinstated with back pay. On November 21, 2006, the Commission reversed the decision of the hearing officer and ruled that he should be fired.
On February 15, 2007, Guevara filed a federal civil rights action (42 U.S.C. § 1983) combined with a petition for administrative mandamus (Code Civ. Proc., § 1094.5) to review the Commission's decision in the federal district court.*fn1 He alleged that District defendants had "intentionally terminated his employment in retaliation for his exercise of his freedom of speech under the First Amendment . . . ." He also alleged the federal court had "supplemental jurisdiction" to decide his "state law claims" under 28 United States Code section 1367.
On May 22, 2007, the federal court dismissed his action for failure to exhaust state court judicial remedies. It ruled, "Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE to Plaintiff's filing of a renewed federal civil rights claim after such time as he has exhausted his judicial remedies through the filing of a mandamus action in state court."
On June 19, 2007, Guevara filed a superior court action with causes of action for administrative mandamus (§ 1094.5), violation of his federal constitutional rights (42 U.S.C. § 1983), and wrongful termination. On September 14, 2007, he filed an amended complaint.
The District filed a demurrer claiming, among other things, that Guevara's action was barred by the running of the 90-day statute of limitations to file a petition for writ of administrative mandamus to review the Commission's termination decision. (§ 1094.6.)
In his opposition Guevara claimed his action was timely because he filed it within 30 days from the federal court dismissal order as permitted by the federal ...