2013-00148882-CU-BT

Robert Reeve vs. No CA Officials Association

Nature of Proceeding: Hearing on Demurrer

Filed By: Kruse, William E.

Defendants’ demurrer to the first amended complaint (“1AC”) is SUSTAINED without
leave to amend, as follows.

Moving counsel is admonished for failing to comply with CRC Rule 3.1110(b)(3)-(4).

This is action by four individuals whose memberships in defendant Northern California
Officials’ Association (“NCOA”) were suspended allegedly at the behest of defendants
Miklaus and Murphy, both of whom are members of the NCOA’s Executive Board
which ultimately upheld plaintiffs’ for a two year suspensions. Plaintiffs contend that as
a result of their suspensions, they have been unable to obtain assignments to act as
referees for high school football. They further insist that defendants have violated their
due process rights and they have each suffered both economic and general damages
as a result of defendants’ improper conduct. The 1AC purports to assert causes of
action for breach of the covenant of good faith and fair dealing, intentional and
negligent interference with prospective economic advantage, and punitive damages.

Defendants, jointly and severally, generally demur to the 1AC and to each and every
cause of action therein on the grounds that plaintiffs have failed to state facts sufficient
to constitute a valid cause of action against any defendant and/or the Court lacks
subject matter jurisdiction because plaintiffs’ exclusive remedy in this case is
administrative mandamus review pursuant to Code of Civil Procedure §1094.5 and
because plaintiffs failed to exhaust administrative remedies. (Mov. Memo. P&A, p.8:6-
p.9:2.)

The opposition maintains that administrative mandamus is not plaintiffs’ exclusive
remedy here because they were not only suspended by the NCOA board but had that
suspension lengthened to two years before they were afforded a hearing and an
opportunity to present evidence pursuant to NCOA’s bylaws. (Oppos., p.7:19-28.)

Defendants’ request for judicial notice is granted and plaintiffs’ objection to Exhibit D
(NCOA Board “Minutes”) on the ground that it constitutes inadmissible hearsay is
overruled because defendants have sufficiently established the documents fall within
the “business records” exception.

Code of Civil Procedure §1094.5 provides in pertinent part:

(a) 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. All or part of the record of the proceedings before the inferior tribunal,
corporation, board, or officer may be filed with the petition, may be filed with
respondent’s points and authorities, or may be ordered to be filed by the court.
…
(b) The inquiry in such a case shall extend to the questions whether the
respondent has proceeded without, or in excess of, jurisdiction; whether there
was a fair trial; and whether there was any prejudicial abuse of discretion.
Abuse of discretion is established if the respondent has not proceeded in the
manner required by law, the order or decision is not supported by the findings,
or the findings are not supported by the evidence.
(c) Where it is claimed that the findings are not supported by the evidence, in
cases in which the court is authorized by law to exercise its independent
judgment on the evidence, abuse of discretion is established if the court
determines that the findings are not supported by the weight of the evidence. In
all other cases, abuse of discretion is established if the court determines that
the findings are not supported by substantial evidence in the light of the whole
record. (Emphasis added.)

Defendants assert and plaintiffs apparently concede that the provisions of §1094.5
apply not only to governmental but also private, nongovernmental administrative
decisions by governing boards or officials. (See, e.g., Westlake Community Hospital v.
Superior Court (Kaiman) (1976) 17 Cal.3d 465; Pomona College v. Superior Court
(Corin) (1996) 45 Cal.App.4th 1716.) While defendants contend that plaintiffs must
here seek review by mandamus because their suspensions resulted from a proceeding
where NCOA bylaws required a hearing be held and evidence be taken, the opposition
essentially argues that “Here, Defendants do not satisfy the hearing ‘required by law’
element” and therefore mandamus review is not a prerequisite to the present action for
damages. (Oppos., p.7:13-14.) Nevertheless, plaintiffs then admit on Page 8 of the
Opposition that Section 4.3.2 of the NCOA Bylaws explicitly provides in its entirety:

“Any member who is suspended or expelled may appeal the Executive Board’s
decision.

The suspension or expulsion will remain in effect during the appeal process.

The member who is suspended or expelled may appeal the decision within 30
days of the suspension or expulsion.

This appeal must be in writing (email is acceptable) and is to be communicated

directly to the Executive Board Secretary as well as the Executive Board
President via ‘cc’.

Upon receipt of the formal appeal, the Executive Board President will call a
meeting of the Executive Board to discuss the merit of the appeal.

The suspended or expelled member is entitled to be present at this meeting to
present facts and answer any questions relative to the original decision or the
appeal itself.

At the conclusion of the meeting, the Executive Board will then vote in a closed
session to either uphold or rescind the suspension or expulsion.

The Executive Board Secretary or Executive Board President will inform the
affected member in writing (email is acceptable) of the Executive Board’s
decision within 7 days of the closed session vote results.” (Emphasis added.)

Based on this plain and undisputed language from NCOA’s Bylaws, it is readily
apparent not only that a hearing is required to be held but also that evidence is
required to be taken. Consequently, it seems that the prerequisites of Code of Civil
Procedure §1094.5 are satisfied here.

Although the opposition admits plaintiffs were afforded under the NCOA Bylaws the
right to appeal their suspensions and the 1AC itself admits a hearing was actually held
where evidence was taken (1AC, ¶¶17-19), the opposition insists the hearing
“requirement” is not met here because plaintiffs were initially suspended as a result of
a “closed” NCOA Executive Board meeting in June 2013 and their suspensions were
extended to two years during another “closed” meeting in August 2013, all before
plaintiffs were afforded any right under the NCOA bylaws to a hearing in front of the
Executive Board. (Oppos., p.7:19-23.) However, there is no language within Code of
Civil Procedure §1094.5 itself which so much as suggests that the administrative
hearing must occur before any adverse action (e.g., suspension of membership) is
taken and the opposition fails to cite any authority whatsoever for its assertion that the
hearing “requirement” is not satisfied as a matter of law when it occurs only afterward.

Moreover, in Pomona College, the Second District Court of Appeal directed the trial
court to sustain without leave to amend the college’s demurrer to the complaint filed by
an assistant professor who had been denied tenure on the ground that administrative
mandamus was the exclusive remedy. The Court of Appeal explained that the
college’s grievance procedure which entailed a hearing of the assistant professor’s
claims after he was denied tenure satisfied the Code of Civil Procedure §1094.5
requirement of a hearing and the taking of evidence. (Pomona College, at 1728-1729.)

Finally, plaintiffs have otherwise failed to demonstrate that they were denied any liberty
or vested property rights which are of such constitutional importance that a hearing
was required before the suspensions were imposed. In fact, to the extent that the
gravamen of this action is the earnings which plaintiffs will have lost as a result of the
suspensions and that such monetary damages can clearly be awarded retroactively,
the Court finds little reason why the post-suspension hearing which was admittedly
both required by NCOA Bylaws and ultimately provided to plaintiffs would not
otherwise satisfy the “hearing” requirement of Code of Civil Procedure §1094.5.

For all these reasons, defendants’ demurrer to the complaint must be and hereby is
sustained.

Since the Court concludes that given the facts of this case plaintiffs’ exclusive remedy
is administrative mandamus review pursuant to Code of Civil Procedure §1094.5 and
since plaintiffs failed to show a reasonable probability of amending the complaint to
state a valid cause of action not encompassed by §1094.5, leave to amend is
DENIED.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, defendants
to prepare a formal order and judgment of dismissal.