Unpublished Disposition, 935 F.2d 274 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1989)

No. 89-55658.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges, and LEVI, District Judge.* 

MEMORANDUM** 

Walter Haywood appeals from an adverse jury verdict on an Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, claim against his employer, the City of Pasadena. Haywood also appeals the dismissal of his pendent state claims for breach of contract and breach of the implied covenant of good faith and fair dealing.

Haywood was born on August 6, 1923, and has worked for the City of Pasadena ("Pasadena") since June, 1969. He began his employment as a night waterman at a municipal golf course, and apparently has worked at the golf course ever since that time. Upon the merging of Pasadena's Public Works and Parks Departments in 1975, Haywood was classified as a Public Works Maintenance Worker II. Promotion to Maintenance Worker III required an applicant to have job experience and skills in three different areas of the Public Works Department. Pasadena's employees gained this range of experience by "cross-training" in various jobs. Haywood's essential allegation below was that he was denied an opportunity to cross-train because of his age, and therefore was ineligible for promotion.

Haywood was a member of the American Federation of State, County and Municipal Employees, Local 858 (Union). The Union had a Memorandum of Understanding (Memorandum) with Pasadena. On April 14, 1986, pursuant to the Memorandum, Haywood filed a step two grievance alleging that he had applied for a promotion to Maintenance Worker III in July, 1984, but that his application was rejected for lack of sufficient cross-training activities. Haywood's grievance was rejected at the first stage, and he elected not to seek further relief through the grievance procedures still available to him.

On July 1, 1986, Haywood filed this action alleging three claims: (1) age discrimination in violation of the ADEA; (2) breach of contract; and (3) breach of the implied covenant of good faith and fair dealing. On December 14, 1987, the district court held a pre-trial conference, after which it entered a Pre-trial Conference Order. On November 7, 1988, Pasadena moved pursuant to Fed. R. Civ. P. 12(b) (6) to dismiss Haywood's two pendent state causes of action, claims two and three, as well as his claim for compensatory damages under the ADEA. Pasadena simultaneously moved to modify the pre-trial order on the same grounds. The district court granted Pasadena's motions on December 12, 1988. Haywood's sole remaining claim, under the ADEA, went to jury trial on April 18, 1989. The jury returned a special verdict finding that Haywood was within the age group protected by the ADEA, but that he had failed to prove by a preponderance of the evidence that Pasadena denied him the opportunity to cross-train. On May 24, 1989, Haywood noticed this appeal. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1291.

This court reviews de novo dismissals granted pursuant to Fed. R. Civ. P. 12(b) (6). Allen v. City of Beverly Hills, 911 F.2d 367, 369 (9th Cir. 1990).

The district court granted Pasadena's motion to dismiss Haywood's pendent state claims because Haywood failed to comply with the claims presentation requirements of the California Tort Claims Act (Tort Claims Act). The Tort Claims Act provides that presentation of a claim for money or damages against a local public entity, and action thereon by the entity, are prerequisites to filing a civil lawsuit for damages. Cal.Gov.Code Sec. 945.4.1 

Haywood offers two arguments in support of his contention that the district court's decision was erroneous: (1) that the grievance procedure contained in the labor agreement superseded the Tort Claims Act's claims presentation requirement; and (2) that by filing the step two grievance, Haywood substantially complied with the Tort Claims Act's presentation requirement. The court is not persuaded by either argument.

A. The Grievance Procedure Does Not Supersede the Tort

Claims Act

Haywood contends that his pendent claims are based on the Memorandum between Pasadena and the Union. Since the Memorandum includes a grievance procedure, Haywood argues that this procedure supersedes the claims presentation requirement of the Tort Claims Act.

Haywood cites Government Code section 930.2 in support of this argument. Section 930.2 provides that " [t]he governing body of a local public entity may include in any written agreement to which the entity ... is a party, provisions governing the presentation ... [of] claims arising out of or related to the agreement." Haywood argues that by agreeing to the Memorandum's grievance procedure, Pasadena contractually waived the Tort Claims Act's claims presentation requirement for claims arising out of the Memorandum.

We find that the grievance procedure in the Memorandum does not supersede the claims presentation requirement in the Tort Claims Act. To begin with, nothing in the Memorandum explicitly suggests that the grievance procedure is intended to replace the claims presentation process. Nor can any such inference be drawn by implication for the basic reason that the grievance procedure and the claims presentation process serve entirely different functions. The grievance procedure is a mechanism for resolving labor disputes between Pasadena and the Union. As counsel for appellant conceded at oral argument, the grievance procedure does not provide for money damages but involves a multi-step process for resolving and arbitrating labor disputes. The grievance procedure therefore does not put Pasadena officials responsible for the City's fiscal well-being on notice of a potential claim for monetary damages, thereby providing Pasadena with an opportunity to settle meritorious claims without litigation. Yet this is one of the primary functions of the claims presentation procedure in the Tort Claims Act. See Fredrichsen v. City of Lakewood, 6 Cal. 3d 353, 359-60 (1971); Knight v. City of Los Angeles, 26 Cal. 2d 764, 767 (1945). Indeed, the facts of this case clearly demonstrate the inefficacy of the grievance procedure to serve as the claims presentation mechanism as well. Haywood pursued his grievance through the primary phase of the grievance procedure. But he then abandoned that process and neglected to take his grievance to arbitration. It cannot fairly be said that Pasadena was then on notice of a potential claim for money damages. On the contrary, Pasadena might fairly have concluded that Haywood had dropped the matter.

Finally, we note that nothing in the language of section 930.2 or of any other provision of the Tort Claims Act provides that a grievance procedure by its very existence necessarily will supersede the Tort Claims Act presentation requirement.

B. Haywood Did Not Substantially Comply With the Tort Claims

Act

Haywood next contends that even if he did not comply with the Tort Claims Act, by filing a grievance he "substantially complied" with the claims presentation requirement. California courts have held, however, that substantial compliance cannot be predicated on no compliance at all. See e.g. San Jose v. Superior Court, 12 Cal. 3d 447, 456-57 (1974) ("to gauge the sufficiency of a particular claim, two tests shall be applied: Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance"); Loehr v. Ventura County Community College Dist., 147 Cal. App. 3d 1071, 1083 (1983) ("The doctrine of substantial compliance ... cannot cure total omission of an essential element from the claim or remedy a plaintiff's failure to comply meaningfully with the statute"). Moreover, the fact that a public entity has full knowledge of the facts constituting the basis of a claim does not excuse compliance with the Tort Claims Act's filing requirements. Loehr, 147 Cal. App. 3d 1071, 1084; see also San Jose, 12 Cal. 3d at 455, 525 P.2d at 706 ("it is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge--standing alone--constitutes neither substantial compliance nor basis for estoppel"). The authorities upon which Haywood relies are not controlling. Unlike Haywood, the plaintiffs in both San Jose, 12 Cal. 3d 447, and Farrell v. County of Placer, 23 Cal. 2d 624, (1944), presented claims.

Finally, as noted above, Haywood did not pursue his grievance through the multi-step procedure but abandoned it prior to arbitration. Thus, he did not substantially comply with the arbitration and grievance process let alone the claims presentation procedure. In short, we find that even if the grievance mechanism in the Memorandum could substitute for the claims presentation procedure, Haywood's pendent claims were properly dismissed because he failed to pursue the grievance remedies under the Memorandum by not proceeding to step three of the grievance procedure.2 

" 'It is thoroughly established that the sufficiency of the evidence is not reviewable on appeal unless a motion for a directed verdict was made in the trial court.' " Williams v. Hughes Helicopters, Inc., 806 F.2d 1387, 1392 (9th Cir. 1986), quoting United States v. 33.5 Acres of Land, 789 F.2d 1396, 1400 (9th Cir. 1986). It appears from the record and from Pasadena's brief that Haywood did not move for a directed verdict at trial and that none of the exceptions to the rule barring review on appeal applies here. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990) (setting forth three exceptions). Haywood does not argue either point. The court therefore declines to review Haywood's challenge to the sufficiency of the evidence supporting the jury's verdict that he was not denied cross training in violation of the ADEA.3 

Pasadena contends that this appeal is frivolous because it is not well grounded in fact, not warranted by existing law, and not made in a good faith attempt to extend existing law. Pasadena contends that Haywood should be sanctioned, pursuant to Fed. R. App. P. 38, Fed. R. Civ. P. 11, and 28 U.S.C. § 1912. A frivolous appeal has been defined "as one in which the result is obvious, or where the appellants' claims are utterly meritless." International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1406 (9th Cir. 1985). Although Haywood's appeal does not prevail, the court does not find that the claims presented are "utterly meritless." The request for sanctions is denied.

AFFIRMED.

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 *

David F. Levi, United States District Judge for the Eastern District of California, sitting by designation

 1

Section 945.4 of the Act provides in part that:

no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented ... until a written claim therefore has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board....

 2

Having properly dismissed Haywood's state law claims, the district court did not abuse its discretion in modifying the pretrial order accordingly. See Jordan v. Clark, 847 F.2d 1368, 1376-77 n. 9 (9th Cir. 1988) (modification of pre-trial order is reviewed for abuse of discretion)

 3

The court need not, and does not, reach the question of whether the District Court properly struck Haywood's claim for compensatory damages on his ADEA claim