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Cornejo v. Lightbourne

California Court of Appeals, Third District, Sacramento

October 22, 2013

RUBY CORNEJO, Plaintiff and Appellant,
WILL LIGHTBOURNE, as Director, etc., et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Sacramento County, No. 34-2010-00078421-CU-OE-GDS Robert C. Hight, Judge.

Lawrence J. King for Plaintiff and Appellant.

Kamala D. Harris, Attorney General, Alicia M.B. Fowler, Assistant Attorney General, Susan E. Slager and Austin Cattermole, Deputy Attorneys General, for Defendants and Respondents.


Plaintiff Ruby Cornejo filed this action for damages for violations of the California Whistleblower Protection Act (WPA) (Gov. Code, § 8547 et seq.)[1] in May 2010. She alleged that as a result of her reports starting in 1999 the practices and policies of the Department of Social Services (the Department) were “ ‘improper governmental activity’ ” (§ 8547.2, subd. (c)), and she experienced retaliation beginning in 2002. The Department[2] demurred on several grounds. The trial court agreed that plaintiff had failed to comply with the Government Claims Act (Claims Act)[3] because the Claims Act procedures for presenting claims (see §§ 900-915.4, 945.4) apply to actions under the WPA and—as plaintiff conceded—she had not filed a claim with the State of California before bringing suit (see § 905.2). The trial court also concluded the limitations period for actions subject to the claims presentation requirement had expired. The trial court did not reach the remainder of the grounds for defendant’s demurrer. It entered a judgment of dismissal in favor of the Department, from which plaintiff appeals.

Analogizing to the California Fair Employment and Housing Act (FEHA), [4] plaintiff contends the WPA is not subject to the Claims Act because it has a comprehensive administrative procedure that satisfies the purposes of the presentation procedure in the Claims Act. We agree. We also conclude that the alternative grounds for the demurrer are without merit. We will therefore reverse the judgment and remand with directions to overrule the demurrer.


The substance of the allegations underlying plaintiff’s claims against the Department are not at issue on appeal. We therefore focus on the first amended complaint’s allegations involving the procedural background and matters in the State Personnel Board (Board) administrative proceedings of which the trial court took judicial notice at the Department’s request.

Plaintiff initially filed a civil action against the Department in 2000, in which she asserted racial and handicap discrimination and retaliation. In June 2001, the parties executed a settlement agreement in which plaintiff released all claims “arising from or in any reasonable way related to the disputes and controversies” at issue in the action in exchange for various forms of consideration from the Department.

Plaintiff filed administrative complaints with the Board in 2004, 2005, and 2006 alleging retaliation in violation of the WPA. (§ 8547.8, subd. (a).) Pursuant to Board regulations, the Board’s executive officer issued a notice of findings at the conclusion of “protracted” investigations in which she neither sustained nor dismissed the first of these, instead referring the 2004 proceeding to a hearing officer for an evidentiary hearing (Cal. Code Regs., tit. 2, former § 56.2, subds. (g), (j), (k), (l), Register 2002, No. 33 (Aug. 14, 2002) (hereafter 2002 Regulations)).[5] The hearing officer consolidated the 2005 claim for hearing (§ 19683, subd. (a)), and also consolidated and stayed proceedings in the 2006 claim.

In a lengthy decision in November 2008, the hearing officer granted a motion to dismiss as to about half of the allegations in the first two administrative complaints. The hearing officer set the remainder for a further evidentiary hearing.

In December 2008, plaintiff entered into a settlement agreement in connection with a 2007 action she had filed against the Department, alleging disability discrimination, retaliation, and harassment. The settlement agreement provided: “By this Agreement, the Parties intend to settle the rights... and claims of the Parties from the [2007] Action and any related actions filed in state or federal courts or with administrative agencies. This release does not apply to and shall [not] have [any] effect on the matters currently pending before the [Board]” in the three administrative proceedings. “The Parties agree further that the settlement herein shall [not] have [any] effect upon the prosecution of [those complaints], in spite of certain factual allegations in this Action being the same or similar to factual allegations pl[ed] in... [that] administrative action. Plaintiff will not be prohibited from alleging same or similar factual allegations in [that administrative proceeding], and this Agreement will neither operate as issue preclusion nor res judicata [in that administrative proceeding].” With that caveat, plaintiff agreed to dismiss with prejudice all claims that were or could have been made in the 2007 action, and released all preexisting claims that might exist against the Department.

Plaintiff filed a fourth administrative complaint in July 2009 (and an amended version of it in September 2009). The Board’s executive officer dismissed the complaint in September 2009 because it did not describe any specific retaliatory acts within the 12 months preceding its filing. (§ 8547.8, subd. (a); Cal. Code Regs., tit. 2, § 67.3, subd. (c)(1).)

At the same time, plaintiff requested that the Board also close her three other pending proceedings, because the decision in State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963 (Chiropractic Examiners) had obviated her need to pursue administrative remedies beyond the executive officer’s issuance of ...

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