James A. Mitchel v. City of Santa Rosa

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The Honorable Gordon J. Quist, Senior District Judge for the U.S.**
District Court for Western Michigan, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES A. MITCHEL,
Plaintiff-Appellant/Cross-
Appellee,
v.
CITY OF SANTA ROSA,
Defendant-Appellee/Cross-
Appellant.
Nos. 10-16570, 10-16694
D.C. No. 3:09-cv-05004 SI
MEMORANDUM*
Appeals from the United States District Court
for the Northern District of California
Susan J. Illston, District Judge, Presiding
Argued and Submitted October 25, 2011
San Francisco, California
Before: GRABER and IKUTA, Circuit Judges, and QUIST, Senior District**
Judge.
The district court’s dismissal of Claim 2 is affirmed. Claim 2 is waived because
James Mitchel voluntarily invoked arbitration under section 56 of the Santa Rosa City
FILED
DEC 28 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Charter without challenging any aspect of section 56. See Moncharsh v. Heily &
Blase, 832 P.2d 899, 917 (Cal. 1992). Even if Mitchel did not waive Claim 2, the
claim was properly dismissed because the arbitration costs imposed in his individual
case, which involved a cost-sharing provision between the employer and employee,
did not violate Mitchel’s right to due process. The Santa Rosa Personnel Rules
guaranteed Mitchel the right to a hearing before the Personnel Board, and any decision
would have been subject to judicial review. Instead, Mitchel opted for final and
binding arbitration under the terms of the Santa Rosa City Charter.
As to Claim 13 in the First Amended Complaint (“FAC”), Mitchell alleges very
generally that the arbitration award should be vacated because of violations of
California Government Code section 1286.2. The specific grounds for vacatur are
alleged to be: unlawful tactics of Arbitrator Kelly; the arbitration panel exceeded its
powers by hearing the arbitration; Mitchel was substantially prejudiced by the refusal
of the arbitrators to see and hear material evidence and to permit discovery; the
arbitrators heard evidence that was substantially tainted; and Mitchel was substantially
prejudiced by the conduct of the arbitrators who reviewed typewritten evidence
without production of the underlying handwritten notes. Mitchel was given leave to
amend Claim 13 of the FAC “as to the allegations of misconduct by Arbitrator Kelly,”
but Mitchel failed to do so, instead omitting Claim 13 from the Second Amended
Complaint (“SAC”). The district court was thereafter correct in concluding that

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Mitchel’s failure to keep allegations regarding Arbitrator Kelly in the SAC resulted
in Mitchel abandoning his claims regarding alleged wrongdoing by Arbitrator Kelly.
See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“It is the law of
this circuit that a plaintiff waives all claims alleged in a dismissed complaint which
are not realleged in an amended complaint.”). The district court erred, however, by
finding that Mitchel had abandoned his remaining grounds for vacatur, because the
district court had rejected these grounds “as a matter of law,” without leave to amend.
We therefore review the district court’s dismissal of these grounds.
As for Mitchel’s argument that the arbitration panel improperly refused to
consider his claims that the City violated California’s Public Safety Officers
Procedural Bill of Rights Act (“POBOR”), Cal. Gov’t Code §§ 3300-3313, we find
that the district court erred by affirming the arbitration panel’s reasoning. Although
the California Superior Court has “initial jurisdiction” over POBOR claims, see Cal.
Gov’t Code § 3309.4(c), California courts have held that this grant of initial
jurisdiction “does not vest the courts with exclusive jurisdiction over an officer’s
[POBOR] claims.” Lozada v. City & Cnty. of San Francisco, 52 Cal. Rptr. 3d 209,
220 (Ct. App. 2006). We therefore remand this portion of Claim 13 for the district
court to consider whether the arbitration panel’s refusal to consider Mitchel’s POBOR
claims constituted a ground for vacatur of the award. See Cal. Civ. Code § 1286.2.
As for Mitchel’s argument that the arbitration panel refused to allow him

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adequate discovery and permitted the City to present evidence of Ms. Warr’s
typewritten notes without producing the underlying handwritten notes, we find that
the district court erred by relying on the McClain Declaration submitted by the City.
Generally, at the motion to dismiss phase, the court is limited to reviewing the
contents of the complaint and any documents incorporated by reference. See, e.g.,
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). We therefore remand this
portion of Claim 13 for the district court to determine whether the allegations in the
complaint, taken as true, show that the arbitration panel denied Mitchel discovery to
which he was entitled, and whether any such error constituted a ground for vacatur
of the award. See Cal. Civ. Code § 1286.2.
The district court dismissed Claims 6, 7, 9, and 10 of the SAC (Mitchel’s
termination-related claims) on the ground that Mitchel conceded the validity of the
arbitration award by abandoning request for vacatur. Because Mitchel did not
abandon his request for vacatur when he omitted from the SAC the portions of Claim
13 that the district court had already dismissed with prejudice, we hold that the district
court’s reasoning was incorrect. However, we affirm the district court’s dismissal of
Claims 6, 7, and 10 on alternate grounds.
1) As to Claim 6, the district court is affirmed on the ground that Mitchel
failed to show compliance with the California Fair Employment and Housing
Act (“FEHA”) section 12965(e)(2). See Cal. Gov’t Code §§ 12900-12996.

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Under FEHA, a complainant must file a complaint with the California
Department of Fair Employment and Housing within one year of the unlawful
discrimination and receive a right-to-sue letter, see Cal. Gov’t Code §§ 12960,
12962, 12965, and any action must be brought within one year of receipt of the
letter, id. § 12965(e)(2). Here, Mitchel received a right-to-sue letter on June 7,
2008. However, Mitchel did not file his present action against the City until
September 30, 2009, more than a year later. The district court dismissed Claim
6 from the FAC with leave to amend in order for Mitchel to “include
allegations regarding the statute of limitations and/or equitable tolling.”
Because Mitchel did not include any such allegations in Claim 6 of the SAC,
we affirm the district court’s dismissal of this claim for failure to show
compliance with section 12965(e)(2).
2) As to Claim 7, the district court is affirmed on the ground that Mitchel
failed to plead compliance with the California Tort Claims Act (“TCA”), Cal.
Gov’t Code §§ 910, 945.4. The claim submitted to the City focused almost
entirely on Mitchel’s challenge to the City Attorney’s dissemination of
Mitchel’s interview report. The claim did not provide the City with sufficient
notice of the termination-related claim to enable it to investigate the allegations.
See Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth., 99 P.3d
500, 502 (Cal. 2004).

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3) As to Claim 10, the district court’s dismissal is affirmed because an
administrative writ of mandamus cannot be used to challenge an arbitration
award. Brosterhous v. State Bar of Cal., 906 P.2d 1242, 1255 (Cal. 1995).
With respect to Claim 9 and the portions of Claim 13 that the district court
dismissed in error, we remand this case to the district court to: 1) determine whether
the federal district court should exercise its pendent jurisdiction over these claims or
should remand the claims to the state court, see Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 350 (1988); Jones v. Cmty. Redev. Agency, 733 F.2d 646, 651 (9th Cir.
1984) (usually dismissal of federal claims before trial dictates that the pendent state
claims should be dismissed); and 2) if the district court does retain jurisdiction over
the state claims, determine whether these claims can survive a motion to dismiss on
grounds other than abandonment.
The dismissal of Claims 11 and 12 is affirmed for the reasons stated by the
district court. Claims 11 and 12 allege several violations of POBOR. Cal. Gov’t
Code §§ 3300-3313. Insofar as the claims pertain to receipt of the investigative report
and the Notice of Intent letter, the claims fail as a matter of law. The remaining
claims fail because Mitchel did not satisfy the requirements of the TCA. See Cal.
Gov’t Code §§ 910, 945.4. The claim that Mitchel sent to the City was not sufficient
to put the City on notice of the separate claim that Mitchel was not afforded sufficient
pre-termination hearing discovery. See Stockett, 99 P.3d at 502.

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The district court’s sanctions award is vacated and remanded for
reconsideration. The district court awarded attorneys’ fees for defending against the
entire SAC, despite justifying the award almost entirely on a single frivolous claim.
That claim is only one out of thirteen, and it is a claim not even contained in the SAC.
Sanctions should be awarded only for the offending counts in a multi-count complaint.
Fed. R. Civ. P. 11 advisory committee notes 1993 amends., cmts. to subdivs. (b) and
(c), ¶ 9. If the district court improperly awarded sanctions for non-offending counts,
then it abused its discretion by making a mistake of law. Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990). Thus, the district court should identify the particular
claims in the FAC and SAC that it found sanctionable and should ensure that its
sanctions award fits the sanctionable conduct that it identifies.
The district court’s dismissal of Claims 2, 6, 7, 10, 11, 12, and part of 13 is
AFFIRMED.
The district court’s dismissal of Claim 9 and part of Claim 13 is VACATED
and REMANDED.
The district court’s sanction award is VACATED and REMANDED for
reconsideration. The parties shall bear their own costs on appeal.

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