Filed 2/23/15 Smith v. Los Angeles County Office of Education CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION ONE

KIANA SMITH,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY OFFICE OF 

EDUCATION,

Defendant and Respondent.

 B252466

 (Los Angeles County

 Super. Ct. No. BC494537)

APPEAL from a judgment of the Superior Court of Los Angeles County. Yvette 

M. Palazuelos, Judge. Affirmed.

AlderLaw, Michael Alder, Marni B. Folinsky; Krieger & Krieger, Linda 

Guthmann Krieger, Patrick A. Gangitano, and Terrence B. Krieger for Plaintiff and 

Appellant.

Musick, Peeler & Garrett, Cheryl A. Orr, and Kristine E. Kwong for Defendant 

and Respondent.

_______________________________
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Plaintiff Kiana Smith filed this appeal after the trial court granted a motion for 

judgment on the pleadings by her former employer, defendant Los Angeles County 

Office of Education (LACOE), in this action alleging violations of the Fair Employment 

and Housing Act (FEHA) and related causes of action. The trial court concluded this 

action is barred because Smith failed to exhaust her judicial remedies by filing a petition 

for writ of administrative mandate in superior court challenging the administration 

decision upholding LACOE’s termination of her employment. We affirm. The findings 

of fact and conclusions of law in the administrative decision are final and binding and 

Smith may not relitigate those issues in this forum. 

BACKGROUND

Smith began working for LACOE as a budget technician in March 2009. On 

October 7, 2011, LACOE served Smith with a Notice of Proposed Dismissal, stating 

LACOE intended to dismiss Smith from her employment as a system specialist in the 

budget section, effective October 21, 2011, due to Smith’s alleged violation of several

Personnel Commission Rules. 

The Notice of Proposed Dismissal listed the following “causes for the proposed 

disciplinary action”:

“(A) Insubordination or willful disobedience. (Personnel Commission Rule 

4250.5.3)

“(B) Violation of law, regulation, policy or established work procedure. 

(Personnel Commission Rule 4250.5.5)

“(C) Engagement in political and/or personal activities during assigned hours of 

duty. (Personnel Commission Rule 4250.5.9)

“(D) Work-related dishonesty, theft, willful misuse for personal gain, willful 

destruction or mishandling of office property and examination deception or fraud. 

(Personnel Commission Rule 4250.5.17)

“(E) Discourteous, offensive, abusive or threatening conduct toward others. 

(Personnel Commission Rule 4250.5.23)
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“(F) Any other work-related offense so grievous that a reasonable person would 

interpret it as an unacceptable work behavior or action. (Personnel Commission Rule 

4250.5.25).” 

The Notice of Proposed Dismissal also included a five-page “Statement of 

Charges” listing the “facts and allegations that support the above causes for disciplinary 

action.” LACOE alleged Smith made derogatory comments about coworker Mahendra 

Ahuja in e-mails to another coworker, and later “knowingly filed a false ‘formal sexual 

harassment’ complaint against Ahuja.” LACOE also alleged Smith engaged in an 

unprofessional personal relationship with another coworker, Moses Tanwanseng, and 

used her work computer during regular business hours to communicate with him via email regarding “highly personal matters.” LACOE further alleged Smith made an 

unmeritorious sexual harassment complaint against Tanwanseng after Tanwanseng 

discontinued his financial support of Smith and her son. LACOE also alleged Smith 

made a “dishonest” and “exaggerated” report to LACOE regarding “a potential threat or 

harm from Tanwanseng’s wife.”

Smith maintains her “relationship [with Tanwanseng] was always platonic, as 

Smith is and at all relevant times was a lesbian . . . , and Tanwanseng is approximately 

thirty years her senior.” According to Smith, between April 2010 and July 2011, 

Tanwanseng “provided Smith and her young son with unsolicited gifts and financial 

support,” including monetary gifts, airfare for Smith and her son to take two trips, the 

purchase of a house in Smith’s name, and the lease of a 2008 BMW car. These gifts

totaled more than $400,000. 

In both the dismissal proceedings before LACOE and the present action, Smith 

claimed her relationship with Tanwanseng changed on or about July 8, 2011, when she 

called Tanwanseng to pick her up from the hospital and he “place[d] his hands on the 

[hospital] bed and tried to fondle [her].” Later the same evening, after her discharge from 

the hospital, Smith met Tanwanseng at a casino and he attempted to kiss her when he 

greeted her. Smith rejected his advance and they remained at the casino gambling. A 

few days later, Tanwanseng’s wife sent a text message to Smith demanding Smith “leave 
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her husband alone.” Tanwanseng asked Smith to return the BMW he had leased for her 

and Smith complied.

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Smith asserts she believed Tanwanseng’s wife was a threat to her 

after Tanwanseng told her “his wife had taken his guns and ammunition and would not 

give them back to Tanwanseng.” 

In mid-July 2011, Smith reported to LACOE that Tanwanseng was sexually 

harassing her and his wife was threatening her. LACOE placed Smith and Tanwanseng 

on administrative leave for two days, met with them, and admonished them to keep their 

personal business out of the office. According to Smith, about a week later, on July 22, 

2011, Tanwanseng came to her home during her lunch break and sexually assaulted her. 

In August 2011, after Tanwanseng’s wife filed a civil action against Smith seeking return 

of all gifts from Tanwanseng, Smith filed a formal sexual harassment complaint against 

Tanwanseng with LACOE. LACOE placed Smith on administrative leave for several 

weeks and investigated the complaint. As set forth above, on October 7, 2011, LACOE 

served Smith with the Notice of Proposed Dismissal. According to Smith, the proposed 

discipline for Tanwanseng was suspension. 

In response to the Notice of Proposed Dismissal, Smith requested a pre-discipline 

Skelly hearing, which was held on October 18, 2011. The hearing officer found no cause 

to modify the proposed dismissal, and Smith’s employment was terminated effective 

October 21, 2011. 

Smith appealed her dismissal to LACOE’s Personnel Commission. A hearing was 

held January 19, 25, and February 24, 2012, before an appointed hearing officer. Four 

employees testified on behalf of LACOE. Tanwanseng testified on behalf of Smith. 

Smith declined to testify. LACOE introduced numerous exhibits including e-mails 

between Smith and Tanwanseng, dated April-August 2011, an investigative report 

regarding Smith’s sexual harassment complaint against Ahuja, and an investigative report 

regarding Smith’s sexual harassment complaint against Tanwanseng. 

 

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Smith did not return or reimburse Tanwanseng for other gifts he had purchased 

for her, including the house where she and her son continued to live.
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On or about March 15, 2012, the hearing officer issued a 19-page decision 

recommending the Personnel Commission affirm Smith’s dismissal. The decision 

includes a discussion of the evidence presented at the hearing, 32 findings of fact, and six

conclusions of law. The hearing officer concluded Smith violated six Personnel 

Commission rules by “bring[ing] her personal issues with Moses Tanwanseng into the 

workplace;” by using her LACOE computer e-mail to communicate with Tanwanseng 

about personal business; by conducting “personal activities during assigned hours of 

duty” related to her relationship with Tanwanseng; by making “dishonest” reports of 

sexual harassment against Ahuja and Tanwanseng; by making derogatory comments 

about Ahuja in e-mails to Tanwanseng; and by “wast[ing] time and resources of LACOE 

management by having to investigate frivolous complaints of harassment [against Ahuja 

and Tanwanseng] and security concerns [related to Tanwanseng’s wife].” 

Smith did not challenge the Personnel Commission’s findings of fact and 

conclusions of law by filing a petition for writ of administrative mandate in superior court 

under Code of Civil Procedure section 1094.5. Thus, the Personnel Commission’s 

decision became final and binding.

On October 25, 2012, after submitting a tort claim to LACOE and receiving a right 

to sue notice from the California Department of Fair Employment and Housing (DFEH), 

Smith filed the present action against LACOE. In her first amended complaint, she 

asserts four causes of action under FEHA: sexual harassment, unlawful discrimination 

based on sex, retaliation for opposing discrimination and harassment, and failure to 

prevent discrimination and harassment. She also asserts causes of action for wrongful 

termination in violation of public policy, negligent hiring, supervision and retention, and 

intentional infliction of emotional distress. Smith alleges Tanwanseng sexually harassed 

and sexually assaulted her, and LACOE retaliated against her for objecting to the 

harassment and assault by terminating her employment. Smith claims, at the hearing 

before the Personnel Commission, she presented “overwhelming evidence supporting 

[her] version of events, including her claims of sexual harassment, sexual assault and 

retaliation,” but LACOE nonetheless terminated her employment. 
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In response to Smith’s first amended complaint, LACOE filed a motion for 

judgment on the pleadings, arguing Smith’s action is barred because she failed to exhaust 

her judicial remedies by filing a petition for writ of administrative mandate in superior 

court challenging the adverse administration decision. LACOE asserted, because the 

findings of fact and conclusions of law in the administrative decision are final and 

binding, Smith is collaterally estopped from relitigating the issues in the present action. 

Smith filed an opposition to the motion, arguing “none of the issues before [the trial] 

court were necessarily and finally decided on the merits by the Personnel Commission,” 

and she was not required to challenge the administrative decision by writ before 

proceeding with this action. 

Agreeing with LACOE’s arguments, the trial court granted the motion for 

judgment on the pleadings without leave to amend and dismissed Smith’s action. 

DISCUSSION

Smith contends the trial court erred in granting LACOE’s motion for judgment on 

the pleadings on the grounds she failed to exhaust her judicial remedies and her claims 

are barred by collateral estoppel. 

“Review of an order granting a motion for judgment on the pleadings is governed 

by the same standard applicable to reviewing an order sustaining a general demurrer. 

This court will examine only the face of the pleadings, together with matters subject to 

judicial notice, to determine whether such facts are sufficient to constitute a cause of 

action. A defendant is entitled to a judgment on the pleadings when it appears from the 

face of the complaint (or on those matters judicially noticed) that the complaint is barred 

as a matter of law. [Citation.] We review the pleadings de novo to determine whether 

the trial court erred in granting the motion.” (California Water Impact Network v. 

Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, 1476.)

“The underpinnings of [the] rule of exhaustion of judicial remedies . . . are buried 

in the doctrine of . . . collateral estoppel . . . .” (Knickerbocker v. City of Stockton (1988) 

199 Cal.App.3d 235, 241.) “The doctrine of collateral estoppel bars the relitigating of 

issues which were previously resolved in an administrative hearing by an agency acting 
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in a judicial capacity.” (Id. at p. 242.) “[U]nless a party to a quasi-judicial proceeding 

challenges the agency’s adverse findings made in that proceeding, by means of a mandate 

action in superior court [under Code of Civil Procedure section 1094.5], those findings 

are binding in later civil actions.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 

69-70, 71 [“Plaintiff’s FEHA claim that his discharge was for discriminatory reasons is at 

odds with the preceding determination by the City that the termination was for economic 

reasons, a finding that . . . is now binding”].) A “plaintiff is bound by the [administrative 

agency]’s determination and to the extent that h[er] causes of action are inconsistent with 

that determination, they are fatally flawed. But plaintiff is not required to attack an 

administrative determination in which [s]he acquiesces.” (Knickerbocker v. City of 

Stockton, supra, 199 Cal.App.3d at p. 244.)

On Smith’s administrative appeal, the Personnel Commission found Smith’s 

sexual harassment complaints against Ahuja and Tanwanseng, and her reports of threats 

from Tanwanseng’s wife, were frivolous. The Commission further found Smith was 

dishonest in making these complaints and reports to LACOE. Smith acknowledges in her 

first amended complaint that these issues were before the Personnel Commission at the 

hearing on her administrative appeal. She alleges she presented “overwhelming evidence 

supporting [her] version of events, including her claims of sexual harassment, sexual 

assault and retaliation,” but LACOE nonetheless terminated her employment. After 

hearing evidence regarding Ahuja’s, Tanwanseng’s, and Tanwanseng’s wife’s conduct 

toward her, including Tanwanseng’s testimony on Smith’s behalf, and hearing evidence 

regarding LACOE’s reaction to Smith’s reports of sexual harassment and security 

concerns, the Personnel Commission determined LACOE properly terminated Smith’s 

employment.

Smith did not challenge the Personnel Commission’s adverse findings and 

determination by filing a petition for writ of administrative mandate in superior court 

under Code of Civil Procedure section 1094.5. Thus, the Commission’s findings and 

determination against her are final and binding. Smith’s causes of action against LACOE 

in the present action, alleging sexual harassment and discrimination, retaliation for 
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opposing sexual harassment and discrimination, failure to prevent harassment and 

discrimination, wrongful termination in violation of public policy, negligent hiring, 

supervision and retention of Tanwanseng, and intentional infliction of emotional distress, 

are inconsistent with the Commission’s findings and determination and are therefore 

“fatally flawed.” (Knickerbocker v. City of Stockton, supra, 199 Cal.App.3d at p. 244.) 

All of these causes of action are based on Smith’s allegations regarding Ahuja’s, 

Tanwanseng’s and Tanwanseng’s wife’s conduct toward her and LACOE’s reaction to 

her reports of sexual harassment and security concerns, culminating in her dismissal.

Smith argues she was not required to assert her claims for damages against 

LACOE in the administrative appeal, and she has the right to choose the forum where she 

wants to pursue her damages claims. It is true that a government employee need not 

exhaust her administrative remedies before filing a complaint with DFEH and obtaining a 

right to sue notice. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1092.) But 

once Smith decided to invoke her administrative remedies to challenge her termination, 

and the Personnel Commission made adverse findings regarding the merits of her sexual 

harassment claims and LACOE’s reaction to same, Smith became bound by those 

adverse findings and cannot now bring causes of action which are based on allegations 

inconsistent with those findings.

“[W]hen, as here, a public employee pursues administrative civil service remedies, 

receives an adverse finding, and fails to have the finding set aside through judicial review 

procedures, the adverse finding is binding on discrimination claims under the FEHA.” 

(Johnson v. City of Loma Linda, supra, 24 Cal.4th at p. 76.) Smith maintains these 

principles do not apply here because she appealed from discipline imposed on her; she 

did not file a grievance against LACOE, asserting her claims of sexual harassment and 

discrimination, retaliation and wrongful termination. As applied to the present appeal, 

this is a distinction without a difference. Smith appeared before the Personnel 

Commission and the Commission made an adverse determination and findings that are

inconsistent with the material allegations on which Smith’s causes of action are based. 

Smith cannot pretend those adverse findings do not exist. They are final and binding and 
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bar all of her causes of action against LACOE in the present action. (See Miller v. City of 

Los Angeles (2008) 169 Cal.App.4th 1373, 1376, 1382-1383 [where city employee 

appealed his discharge to the Board of Civil Service Commissioners, but failed to 

challenge the hearing examiner’s determination by administrative mandate action in 

superior court, hearing examiner’s determination and findings were binding in 

subsequent court action for discrimination, harassment, retaliation, intentional infliction 

of emotional distress, etc.].)

DISPOSITION

The judgment is affirmed. Respondent is entitled to recover costs on appeal.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

JOHNSON, J.