Ramirez v. Dept. of Health Services

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Filed 3/16/07 Ramirez v. Dept. of Health Services CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
ANNA L. RAMIREZ,
Plaintiff and Appellant,
v.
DEPARTMENT OF HEALTH SERVICES et al.,
Defendants and Respondents.
C050718
(Super. Ct. No.
05AS00889)
In granting the Department of Health Services’s demurrer to
state employee Anna Ramirez’s whistleblower claim, the trial
court lamented: “[T]he statute is screwy . . . there’s not much
I can do about it except apply it, apply the law. [¶] I think
the legislature probably needs to address this and clear it up.”
We now face the same predicament.
The statute, the California Whistleblower Protection Act
(Whistleblower Act; Gov. Code, § 8547 et seq.) allows a
whistleblower who is penalized for making a protected disclosure
of wrongdoing to bring a civil action for damages (Gov. Code,
§ 8547.3) after filing a complaint with the State Personnel
Board (SPB) and “the [SPB] has issued, or failed to issue,

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findings . . .” (Gov. Code, § 8547.8, subd. (c)). The question
posed by this appeal is whether the Whistleblower Act, by
requiring an injured whistleblower to file a complaint, triggers
well-established principles of collateral estoppel precluding a
civil action unless the whistleblower obtains a favorable ruling
from the SPB or successfully overturns adverse findings through
administrative mandamus. A preliminary question posed is
whether an “investigation” by the executive officer of the SPB
followed by written findings and a decision qualifies as a
quasi-judicial hearing for purposes of section 1094.5 of the
Code of Civil Procedure.
We conclude (1) that because plaintiff was provided the
opportunity to submit evidence, name witnesses, and argue her
claim, she was provided with the type of quasi-judicial hearing
sufficient to satisfy Code of Civil Procedure section 1094.5
even though the SPB was not required to provide, and she did not
request, an evidentiary hearing; and (2) that because the
Legislature did not clearly provide that a whistleblower could
pursue alternative remedies and did require plaintiff to
initiate administrative proceedings, she is collaterally
estopped from relitigating the findings that were actually
litigated in the quasi-adjudicatory proceedings.
We acknowledge that this result places a substantial burden
on the whistleblower who, subject to an expedited investigation
and without the benefit of an evidentiary hearing, must convince
a court to overturn adverse findings in mandamus proceedings,
despite the considerable deference the court must accord those

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findings. What the Legislature appeared to be giving -- a civil
remedy for retaliatory conduct -- is, in reality, an elusive
possibility unless the SPB sustains the complaint. But, as the
trial court recognized, in the absence of a clear statute
providing alternative remedies, we too must apply this “screwy
statute.”
FACTS
We take the facts, as we must, from plaintiff’s first
amended complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The Department of Health Services (DHS) employed plaintiff as an
administrator in the Office of Family Planning. In her single
cause of action, she alleged that DHS and various named
individuals retaliated against her for making a protected
disclosure. On August 13, 2004, and January 7, 2005, plaintiff
filed a whistleblower complaint with the SPB. On December 23,
2004, and March 30, 2005, the executive officer of the SPB
issued findings that she failed to establish unlawful
retaliation, and those findings became final on January 22,
2005, and April 29, 2005, respectively. Neither plaintiff nor
any of the named defendants requested a hearing, and no hearing
was held. Plaintiff alleged she was not required to file a writ
of mandate before filing an action for damages. She sought no
extraordinary relief before filing her whistleblower complaint.
DISCUSSION
I
The Whistleblower Act embodies a strong public policy to
deter and punish those who retaliate against public employees

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for reporting wrongdoing. “The Legislature finds and declares
that state employees should be free to report waste, fraud,
abuse of authority, violation of law, or threat to public health
without fear of retribution. The Legislature further finds and
declares that public servants best serve the citizenry when they
can be candid and honest without reservation in conducting the
people’s business.” (Gov. Code, § 8547.1.)1 Thus, state
employees who retaliate against whistleblowers are subject to
fines, imprisonment, disciplinary proceedings, and civil
liability, including compensatory damages, punitive damages, and
attorney fees. (§ 8547.8, subds. (b), (c).)
To accomplish its stated objectives, the Whistleblower Act
provides remedies for the injured whistleblower as well. If the
SPB concludes that improper activity has occurred, it “may order
any appropriate relief, including, but not limited to,
reinstatement, backpay, restoration of lost service credit, if
appropriate, compensatory damages, and the expungement of any
adverse records of the state employee or applicant . . . who was
the subject of the alleged acts of misconduct prohibited by
Section 8547.3.” (§ 19683, subd. (c).) Moreover, the SPB must
make reports to the Governor and the Legislature. (§ 19683,
subd. (f).)
The Whistleblower Act also allows a whistleblower to bring
a civil suit for damages. Section 8547.8, subdivision (c)
1 All further statutory references are to the Government Code
unless otherwise indicated.

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states, in pertinent part: “In addition to all other penalties
provided by law, any person who intentionally engages in acts of
reprisal, retaliation, threats, coercion, or similar acts
against a state employee or applicant for state employment for
having made a protected disclosure shall be liable in an action
for damages brought against him or her by the injured party.”
The Legislature has conditioned the right to bring a civil
action, however. Section 8547.8 also provides: “[A]ny action
for damages shall not be available to the injured party unless
the injured party has first filed a complaint with the State
Personnel Board pursuant to subdivision (a) [of this section],
and the board has issued, or failed to issue, findings pursuant
to Section 19683.” (Id. at subd. c.) Section 19683,
subdivision (a) directs the “State Personnel Board [to] initiate
a hearing or investigation of a written complaint of reprisal or
retaliation as prohibited by Section 8547.3 within 10 working
days of its submission. The executive officer shall complete
findings of the hearing or investigation within 60 working days
thereafter, and shall provide a copy of the findings to the
complaining state employee or applicant for state employment and
to the appropriate supervisor, manager, employee, or appointing
authority.”
Plaintiff insists the plain language of the Whistleblower
Act requires nothing more of her than to file a complaint with
the SPB and await its findings or its failure to issue findings
within the statutory time frame set forth in section 19683. She
reminds us not to ignore the plain meaning of the statute by

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either adding words that are not there or ignoring language that
is. (Aguilar v. Association for Retarded Citizens (1991)
234 Cal.App.3d 21, 28-29.) She maintains that if we impose on
her a duty to request a hearing, and then to challenge the
ensuing findings by writ of mandate, we will be engrafting
obligations not found in the statute and ignoring the
Legislature’s simple directive to file a complaint.
Plaintiff’s argument misses the mark in two respects.
First, plaintiff attributes far too great a significance to the
Legislature’s silence. Plaintiff’s argument is reminiscent of
arguments lodged by a university whistleblower and rejected by
the Supreme Court in Campbell v. Regents of University of
California (2005) 35 Cal.4th 311, 324-329 (Campbell). In
Campbell, as here, the whistleblower argued that the pertinent
statutes do not require the exhaustion of administrative
remedies, and therefore, the Legislature must have intended to
abrogate the exhaustion requirement. (Id. at p. 324.) The
whistleblower pointed out that the Legislature certainly knew
how to incorporate an exhaustion requirement as it did in
section 8747.10. Thus, legislative silence on the issue must be
deliberate. (Campbell, supra, 35 Cal.4th at p. 327.)
But according to the Supreme Court, “the express mention in
one statute of a fundamental precondition of filing suit against
an administrative agency does not abrogate that requirement in
every statute that is silent on the matter.” (Campbell, supra,
35 Cal.4th at p. 327.) Or, in other words, “‘courts should not
presume the Legislature in the enactment of statutes intends to

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overthrow long-established principles of law unless that
intention is made clearly to appear either by express
declaration or by necessary implication.’” (Id. at p. 329.)
More fundamentally, plaintiff’s argument miscomprehends the
nature of the exhaustion requirement at issue in this case. DHS
does not dispute that plaintiff has exhausted her administrative
remedies by filing her complaint with the SPB. Nor does DHS
contest plaintiff’s statutory right to bring a civil action.
DHS’s exhaustion argument is different. DHS argues that by
failing to challenge the administrative findings by writ of
mandamus, the findings must be applied in any subsequent legal
action. Thus, according to DHS, plaintiff’s action is doomed,
not by her failure to exhaust administrative remedies but by her
failure to exhaust judicial remedies through a successful
petition for writ of mandamus challenging the SPB’s findings.
II
Would-be plaintiffs ignore adverse administrative findings
at their peril. An ever-burgeoning number of appellate cases
reject civil actions predicated on conduct previously litigated
in administrative proceedings. The issue presented in Westlake
Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 was
“whether an individual who has been expelled or excluded from
membership in an association after being afforded a quasi-
judicial proceeding may bring an immediate tort action for
damages or must first succeed in setting aside the association’s
decision in a separate mandamus action.” (Id. at pp. 482-483.)
A doctor at one of the petitioning hospitals requested a hearing

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after termination of her staff privileges. She was provided a
hearing, the judicial review committee upheld the revocation,
and the hospital board of directors affirmed the committee’s
decision. (Id. at pp. 471-472.) She then brought a civil
action against the hospital. (Id. at p. 469.) The Supreme
Court, affirming the dismissal of the doctor’s tort claim, held:
“[W]e believe that so long as such a quasi-judicial decision is
not set aside through appropriate review procedures the decision
has the effect of establishing the propriety of the hospital’s
action. [Citation.] Accordingly, we conclude that plaintiff
must first succeed in overturning the quasi-judicial action
before pursuing her tort claim against defendants.” (Id. at
p. 484.)
The concept of exhaustion of judicial remedies is rooted in
the principles embodied in collateral estoppel. The two are
integrally intertwined. The question arises as to what effect
administrative findings have in subsequent proceedings,
including criminal and civil actions. In People v. Sims (1982)
32 Cal.3d 468, the Supreme Court held that if an administrative
agency, acting in a judicial capacity, resolved disputed factual
issues in a proceeding in which the parties had an adequate
opportunity to litigate the factual issues, the administrative
findings had a collateral estoppel effect in subsequent

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litigation. (Id. at p. 479.)2 Exhaustion of judicial remedies
became a shorthand means of expressing the collateral estoppel
effect and the policy of preserving the efficacy of
administrative resolution of grievances.
To use the shorthand concept “failure to exhaust judicial
remedies” can be misleading. A failure to exhaust judicial
remedies suggests that the failure to bring a mandamus action
precludes a subsequent civil action. Not so. An aggrieved
employee is not necessarily compelled to petition for a writ of
mandamus as a prerequisite to filing a civil action, but he or
she must abide by the collateral estoppel effect of the
unchallenged administrative findings. The confusion was
properly dispelled in Knickerbocker v. City of Stockton (1988)
199 Cal.App.3d 235 (Knickerbocker).
The court in Knickerbocker explained the difference between
exhaustion of judicial remedies as a condition precedent to
filing a civil action and collateral estoppel. “Unless the
administrative decision is challenged, it binds the parties on
the issues litigated and if those issues are fatal to a civil
suit, the plaintiff cannot state a viable cause of action.
‘Traditionally, collateral estoppel has been found to bar
relitigation of an issue decided at a previous proceeding “if
(1) the issue necessarily decided at the previous [proceeding]
2 The application of collateral estoppel in criminal proceedings
is more problematic than we need to address here. (See Gikas v.
Zolin (1993) 6 Cal.4th 841, 851-852.)

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is identical to the one which is sought to be relitigated;
(2) the previous [proceeding] resulted in a final judgment on
the merits; and (3) the party against whom collateral estoppel
is asserted was a party or in privity with a party at the prior
[proceeding].”’ (People v. Sims, supra, 32 Cal.3d at p. 484,
quoting People v. Taylor (1974) 12 Cal.3d 686, 691;
fn. omitted.) Thus, the defendants in this case are partially
correct because some of plaintiff’s causes of action involve
issues previously litigated and decided adversely to him. Those
causes of action are barred by his failure to seek review of the
Commission’s determination. But it is because he never
overturned the finding of the Commission that there was
justification for demotion as a consequence of his actions, and
not because he failed to exhaust his administrative remedies.
In short, plaintiff is bound by the Commission’s determination
and to the extent that his causes of action are inconsistent
with that determination, they are fatally flawed. But plaintiff
is not required to attack an administrative determination in
which he acquiesces. He is no longer an aggrieved party and
need not bring a superfluous writ proceeding just to lay a
foundation for a later lawsuit. If he is content to accept the
results of the review process furnished by the city, nothing
compels him to seek writ relief. Exhaustion of judicial relief
simply means that if he wishes to attack the administrative
determination he must launch that assault in an administrative
mandamus proceeding and not in a lawsuit for damages.”
(Knickerbocker, supra, 199 Cal.App.3d at pp. 243-244; see also

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Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 81 (conc.
opn. of Werdegar, J.).)
At our urging, plaintiff addresses the significance of a
recent amendment to the SPB’s regulations relevant to
whistleblower actions.3 California Code of Regulations, title 2,
section 56.5 now provides, in pertinent part: “(b) In those
cases where the Executive Officer concludes that the allegations
of retaliation were not proven by a preponderance of the
evidence, the Executive Officer shall issue a Notice of Findings
dismissing the complaint. The Notice of Findings shall notify
the complainant that his or her administrative remedies have
been exhausted and that the complainant may file a civil
complaint with the superior court pursuant to Government Code
Section 8547.8(c).”
Plaintiff does not suggest the revised regulation can be
applied retroactively, but she does argue the SPB’s regulation
amounts to a construction of the Whistleblower Act, and because
the SPB is charged with the administration and interpretation of
the statute, it is entitled to great weight; indeed, it should
be upheld unless it is clearly erroneous or unauthorized.
(Cole v. City of Oakland Residential Rent Arbitration Bd. (1992)
3 Cal.App.4th 693, 697-698.) As already mentioned, DHS does not
3 On August 14, 2002, the SPB adopted regulations governing
whistleblower complaints, effective immediately. Those
regulations were substantially amended in March 2006. We will
cite to the 2002 regulations as “former rule ___” to distinguish
them from current provisions of the California Code of
Regulations.

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challenge the proposition that plaintiff has exhausted her
administrative remedies either factually or legally. Thus,
according to DHS, plaintiff’s interpretation is accurate as far
as it goes.
But the amended regulation, DHS contends, does not address
the preclusive effect of the unchallenged administrative
findings. DHS, requesting that we take judicial notice of the
legislative history of the regulation, observes that the SPB
concluded that “[t]he court, not the SPB, is the appropriate
entity to determine what preclusive effect, if any, the Notice
of Findings shall have in a subsequent civil action.”4 According
to DHS, therefore, the amended regulation does not resolve the
dispositive issue in this appeal, that is, whether plaintiff is
collaterally estopped from bringing a civil action by failing to
exhaust her judicial remedies.
We agree. If, as plaintiff would like, the statute and the
amended regulation were divorced from a complicated body of case
law on the binding effect of administrative findings in
subsequent litigation, we could accept the plain reading of the
statute, bolstered by the regulation, and conclude a
whistleblower need not be encumbered by the administrative
findings of the SPB in her civil action under the Whistleblower
Act. We are not, however, at liberty to pretend the thorny
problems posed by collateral estoppel do not exist. As a
4 We grant DHS’s request to take judicial notice, filed May 26,
2006.

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result, even if we were to accord great weight to the SPB’s
construction of section 8547.8’s administrative exhaustion
requirement, we conclude that the plain language of the statute
simply does not resolve the more difficult dilemma posed by
collateral estoppel.
III
A writ of administrative mandate is available only in cases
where by law a hearing is required. “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. . . .” (Code. Civ. Proc.,
§ 1094.5, subd. (a).) Plaintiff contends the “investigation”
conducted by the executive officer does not constitute a hearing
for purposes of section 1094.5. Nor was a hearing required
under the pertinent statutes or regulations. Pursuant to former
rule 56.3, plaintiff had the opportunity to petition for a
hearing but the SPB was not compelled to provide one. In the
absence of a trial-like evidentiary hearing, plaintiff concludes
the executive officer’s findings do not preclude a civil action.
A formidable body of case law suggests otherwise.
The crux of the problem in this case lies in the multiple
meanings of “hearing.” DHS equates the “investigation”
conducted by the executive officer with a “hearing” required by

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law for purposes of Code of Civil Procedure section 1094.5, a
somewhat odd notion since a complaining party is accorded the
opportunity to request a hearing after completion of the
investigation. But DHS argues that the investigation had all
the attributes of a “documentary hearing” and such a hearing
suffices under section 1094.5.
It is true that “[a] trial-type hearing is not necessary to
satisfy the hearing requirement of section 1094.5 of the Code of
Civil Procedure, so long as the agency is required to accept and
consider evidence before making its decision.” (Las Virgenes
Educators Assn. v. Las Virgenes Unified School Dist. (2001)
86 Cal.App.4th 1, 6-7.) Purely documentary proceedings can
satisfy the hearing requirement. (Friends of the Old Trees v.
Department of Forestry & Fire Protection (1997) 52 Cal.App.4th
1383, 1391-1392 (Friends of the Old Trees).)
Here the “investigation” was much more than the name
suggests. Under the then-applicable rules, plaintiff was
required to file a written statement under penalty of perjury of
the whistleblower report and the alleged retaliation therefor,
with supporting documentation and a list of witnesses. (Former
rule 56.1, subd. (d).) DHS was required to file a written
response with similar detail, and plaintiff could file a written
reply. (Former rule 56.2, subds. (e)-(f).)
The SPB appeals division could continue investigation of
the complaint after the responses, “with or without a
hearing[.]” (Former rule 56.2, subd. (g).) Within 60 days
(unless the time was tolled or waived) the executive officer

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issued a notice of findings. (Former rule 56.2, subd. (i).)
“In those cases where the Executive Officer concludes that the
complainant failed to prove the allegations of retaliation by a
preponderance of the evidence, the Notice of Findings shall,
except in those instances where the findings address
jurisdictional and/or procedural matters, specifically address
each allegation contained within the complaint.” (Former
rule 56.2, subd. (j).) If questions of fact remained, the
executive officer could “assign the case to an evidentiary
hearing” before an administrative law judge. (Former rule 56.2,
subd. (l).)
Plaintiff could have filed a petition for hearing before
the SPB if “the Notice of Findings concludes no retaliation
occurred[.]” (Former rule 56.3, subd. (a).) That petition had
to be filed within 30 days of service of the notice of findings
and specify the factual basis for the petition. (Former
rule 56.3, subds. (b)-(c).)
Once the notice of findings went unchallenged 30 days after
service, it became the decision of the SPB and carried all of
the force thereof. (Former rule 56.5.) The SPB is a statewide
agency entrusted by the California Constitution to administer
the civil service system. (Cal. Const., art. VII, § 3; see
Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 52-
53; Gonzalez v. State Personnel Bd. (1995) 33 Cal.App.4th 422,
428.) Thus, the unchallenged findings became the decision of
the body entrusted by the California Constitution to adjudicate
matters within its purview, including claims of retaliation.

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The executive officer filed a 39-page notice of findings on
December 23, 2004. He outlined in painstaking detail
plaintiff’s version of events occurring over 18 months, followed
by an equally thorough description of her supervisors’ response
to her allegations. After a thoughtful analysis of each of
plaintiff’s allegations of retaliation, the executive officer
concluded: “Complainant failed to present sufficient
information to establish that she had been retaliated against
for having engaged in protected activities under the
[Whistleblower Act]. None of the alleged retaliation resulted
in a materially adverse change in the conditions of
complainant’s employment, or Respondents established legitimate,
non-retaliatory reasons for having engaged in the complained of
conduct.
“Although it appears evident that there existed a decided
personality conflict between Complainant, Camacho, and Lyman,
insufficient information was presented to establish, by a
preponderance of the evidence, that either Camacho or Lyman bore
a retaliatory animus toward Complainant as a result of
Complainant raising concerns about the CFHC contract.”
The notice of findings states plaintiff could “petition for
hearing” before the SPB “no later than 30 days” after service;
“[i]f no party files a petition for hearing within 30 days
following service of this Notice of Findings, this
recommendation shall become the final decision of the State
Personnel Board.”

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Thus, it appears the investigation became a contested
proceeding based on opposing evidentiary submissions. The
executive officer served as a neutral adjudicator and was
required to and did consider the parties’ documentary evidence
as well as arguments. “[S]o long as the agency is required by
law to accept and consider evidence from interested parties
before making its decision,” the proceedings, even if entirely
documentary, satisfy the hearing requirement of Code of Civil
Procedure section 1094.5. (Friends of the Old Trees, supra,
52 Cal.App.4th at pp. 1391-1392; Mahdavi v. Fair Employment
Practice Com. (1977) 67 Cal.App.3d 326, 334.)
Since, as we have concluded, the SPB’s decision was made as
the result of a proceeding in which evidence was required to be
given and considered by the executive officer, its validity can
be challenged by writ of mandate. Here plaintiff chose not to
request an evidentiary hearing before the SPB adopted the
findings of the executive officer and chose not to challenge the
adverse findings by way of a writ. As a result, those findings
cannot be relitigated in a whistleblower civil action and the
trial court properly granted DHS’s demurrer without leave to
amend.
IV
Plaintiff argues, however, that the Whistleblower Act
provides an alternative remedy to her administrative remedies
before the SPB. In the same way the Fair Employment and Housing
Act (FEHA; § 12900 et seq.) allows a claimant to file a civil
lawsuit without exhausting other administrative remedies,

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including proceedings before the SPB, plaintiff contends she
should be allowed to bypass writ proceedings and prosecute her
whistleblower action. (Schifando v. City of Los Angeles (2003)
31 Cal.4th 1074 (Schifando); State Personnel Bd. v. Fair
Employment & Housing Com. (1985) 39 Cal.3d 422 (State Personnel
Bd.).) Her analogy fails because of what the Legislature
expressly stated in FEHA and did not state in the Whistleblower
Act.
“[T]he 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. . . . [T]he FEHA creates areas of overlapping
jurisdiction between the Board and other agencies.” (State
Personnel Bd., supra, 39 Cal.3d at p. 439.) In enacting FEHA,
the legislative intent is bold and blatant. “The Legislature
intended the FEHA’s administrative system ‘to occupy the field
of regulation of discrimination in employment and housing
encompassed by the provisions of [the act], exclusive of all
other laws banning discrimination in employment and housing by
any city, city and county, county, or other political
subdivision of the state . . . .’ (§ 12993, subd. (c).)”
(Schifando, supra, 31 Cal.4th at p. 1082.)

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State employees have the right to bring a civil action
based upon prohibited discriminatory conduct under FEHA after
obtaining a “right to sue” letter or following the Fair
Employment and Housing Commission’s prosecution of an
accusation. (Schifando, supra, 31 Cal.4th at p. 1082.) They
are not required, however, to exhaust their remedies before the
SPB and are entitled to pursue remedies in whichever forum they
choose. (Ruiz v. Department of Corrections (2000)
77 Cal.App.4th 891, 897 (Ruiz).) “‘The Legislature’s intent was
to give public employees the same tools in the battle against
employment discrimination that are available to private
employees. The FEHA was meant to supplement, not supplant or be
supplanted by, existing antidiscrimination remedies, in order to
give employees the maximum opportunity to vindicate their civil
rights against discrimination . . . .’ [Citation.]” (Ibid.)
“‘[The Legislature intended] to create new rights within the
FEHA statutory scheme while leaving existing rights
intact. . . .’ (Jennings v. Marralle (1994) 8 Cal.4th 121,
135 . . . .)” (Ruiz, at p. 898.)
The Whistleblower Act lacks the clarity of FEHA. As the
Supreme Court reminded us in Campbell, “‘[C]ourts should not
presume the Legislature in the enactment of statutes intends to
overthrow long-established principles of law unless that
intention is made clearly to appear either by express
declaration or by necessary implication.’” (Campbell, supra,
35 Cal.4th at p. 329.) Here the legislative intent is murky at
best. The Legislature did not intend to provide aggrieved

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whistleblowers with a free pass to the courthouse without first
filing a complaint with the SPB. (§ 8547.8.) But once the
complaint is filed, did the Legislature intend to allow a civil
action as an alternative remedy to the administrative
proceedings? In other words, did the Legislature intend for any
adverse findings by the SPB to be meaningless?
Because, as we explained at length above, long-established
principles of law require courts to give efficacy to
administrative decisions, we cannot presume the Legislature
intended to upset venerable principles of collateral estoppel
without saying so. FEHA plainly gives employees alternative
and, perhaps, cumulative remedies. But the Whistleblower Act
does not mimic FEHA. Rather, it requires the whistleblower to
initiate administrative proceedings before the SPB, and having
instigated those proceedings, there is nothing in the
Whistleblower Act to exempt whistleblowers from abiding by
entrenched principles of collateral estoppel. If, as plaintiff
argues, the Legislature intends to allow whistleblowers to abort
the administrative proceedings by filing a civil action without
first overturning adverse findings through a writ of mandate, it
will have to make its intentions explicit.
V
That is not to say we are oblivious to the burdens the
Legislature appears to have placed on an injured whistleblower
on the one hand that are at odds with the rights it has
conferred under the Whistleblower Act on the other hand. Both
the SPB and the Legislature continue to attempt to tinker with

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the Whistleblower Act and the implementing regulations to
clarify the whistleblower’s rights and when he or she has
exhausted the administrative remedies. (Sen. Bill No. 165
(2005-2006 Reg. Sess.) as introduced Feb. 8, 2005; Cal. Code
Regs., tit. 2, rule 56.5 (Mar. 8, 2006).) But we must apply the
Whistleblower Act as it is, not the Whistleblower Act that might
be written under either new legislation or new rules.
The administrative proceedings demonstrate infirmities
similar to those described in Schifando and Williams v. Housing
Authority of Los Angeles (2004) 121 Cal.App.4th 708 (Williams).
Pursuant to former rule 56.2, subdivision (c)(1)-(3), within
10 working days the SPB must notify the complaining party of its
decision to either dismiss the complaint, refer the case for
investigation, or schedule the case for a hearing before an
administrative law judge. The executive officer must conclude
the investigation, including the questioning of witnesses,
inspection of documents, and visit of state facilities, and
issue a notice of findings within 60 days (unless the time is
tolled or waived.) (Former rule 56.5.) As a result a
complaining party has a very abbreviated time period to have his
or her complaint resolved under the SPB procedures and might not
have adequate time to prepare a case.
The court in Williams recognized that the disadvantages
suffered by the complaining party during the administrative
proceedings will compromise his or her chances of prevailing in
mandamus. “Although [the administrative agency’s] procedures
provide a hearing and an opportunity to present evidence, . . .

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an aggrieved public employee might not have a chance to
adequately prepare his or her case in the administrative
process. This would further impact any chance of succeeding in
the administrative proceedings. Thereafter, a court reviewing
the matter in a mandamus action would give deference to the
agency’s or entity’s decision. Even under the deferential
independent judgment rule, the public employee is at a
disadvantage in an administrative mandamus action because the
trial court must afford the administrative agency’s findings a
strong presumption of correctness. (Fukuda v. City of Angels
(1999) 20 Cal.4th 805, 816-817 [85 Cal.Rptr.2d 696, 977 P.2d
693].) If the reviewing court upheld the administrative
findings, its determination on those issues would potentially
have a preclusive effect (or collateral estoppel effect) on any
subsequent FEHA action.” (Williams, supra, 121 Cal.App.4th at
pp. 727-728.)
Williams, like Schifando and Ruiz, involved FEHA claims and
all were predicated on the fundamental principle that the
Legislature expressly intended to provide additional and
expansive remedies to employees for discriminatory conduct.
FEHA, unlike the Whistleblower Act, does not require the
aggrieved employee to first file a complaint with the SPB or to
exhaust any procedure other than FEHA. But the Whistleblower
Act does compel the injured party to first file a complaint.
Without exempting whistleblowers from pursuing the
administrative proceedings it requires them to commence, we must
apply traditional principles of collateral estoppel, and despite

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the distinct infirmities present in the administrative
proceedings, we conclude that any adverse findings rendered by
the SPB have a preclusive effect in subsequent civil litigation
unless challenged by a writ of administrative mandamus.
The judgment is affirmed.
RAYE , J.
We concur:
NICHOLSON , Acting P.J.
BUTZ , J.

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