Filed 4/14/14 Holliday v. City of Buena Park CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

STEVE HOLLIDAY et al.,

 Plaintiffs and Appellants,

v.

CITY OF BUENA PARK,

 Defendant and Respondent.

 G048411

 (Super. Ct. No. 30-2012-00576718)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

David T. McEachen, Judge. Affirmed.

Lackie, Dammeier & McGill, Christopher L. Gaspard; Law Office of 

Michael A. Morguess and Michael A. Morguess for Plaintiffs and Appellants.

Liebert Cassidy Whitmore, Mark H. Meyerhoff and Connie C. Almond for 

Defendant and Respondent.

* * *
2

INTRODUCTION

Plaintiffs Steve Holliday and Kevin Shea (plaintiffs) filed a second 

amended complaint against defendant City of Buena Park (the City), containing claims 

for retaliation in violation of the Meyers-Milias-Brown Act (MMBA) (Gov. Code, § 3500 

et seq.) and retaliation in violation of Labor Code section 1102.5. The trial court 

sustained the City’s demurrer to the complaint on the ground plaintiffs failed to exhaust 

internal administrative remedies.

We affirm. As we explain in detail post, and as previously determined by 

Federal District Court Judge James V. Selna in a detailed minute order dismissing 

plaintiffs’ claims without prejudice, plaintiffs’ claims were subject to the grievance 

procedure required by their organizational unit’s governing memorandum of 

understanding (the MOU). Plaintiffs did not submit their claims to the grievance 

procedure. They did not exhaust their internal administrative remedies or plead any 

exception to the exhaustion of internal administrative remedies requirement. Plaintiffs

neither sought leave in the trial court to further amend the second amended complaint, 

nor do they seek leave to amend in this court.

BACKGROUND

I.

PLAINTIFFS FILE COMPLAINT IN THE SUPERIOR COURT;

THE ACTION IS REMOVED TO FEDERAL COURT.

In October 2011, plaintiffs filed a complaint against, inter alia, the City in 

the superior court, a copy of which is not included in our appellate record. The complaint 

contained claims based on both state and federal law. In December 2011, the City 

successfully removed the case to the federal district court. 
3

II.

PLAINTIFFS FILE A SECOND AMENDED COMPLAINT IN FEDERAL DISTRICT COURT;

SUMMARY OF PLAINTIFFS’ ALLEGATIONS

Plaintiffs filed a second amended complaint in the federal district court (the 

federal court complaint), which contained claims for retaliation for exercising their rights 

under the First Amendment to the United States Constitution (42 U.S.C. § 1983); 

retaliation in violation of the Fair Labor Standards Act of 1938 (29 U.S.C. § 215); 

violation of the MMBA; violation of the Public Safety Officers Procedural Bill of Rights 

Act (POBRA) (Gov. Code, § 3300 et seq.); violation of Labor Code section 1102; and 

violation of Labor Code section 1102.5. 

Plaintiffs’ claims were based on the following allegations. Plaintiffs were 

both police lieutenants with the City’s police department when they became politically 

active in their union, the Buena Park Police Association (Association). The Association

was the recognized bargaining unit for all sworn classifications working in the City’s 

police department, with the exception of the position of the chief of police. At some 

point in time, certain Association members—apparently “management employees”

within the bargaining unit—determined it would be in their interests to be represented 

separately from the rest of the bargaining unit on certain unspecified issues. Plaintiffs, 

along with then Captain Sianez and Lieutenants Robin Sells, Rich Forsyth, and Gary 

Worrall, were considered management employees. 

Plaintiffs opposed efforts to separate the management employees from the 

rest of the bargaining unit and sought an election by the Association’s members on the 

issue (i.e., plaintiffs supported the “merger”). The federal court complaint alleged that at 

that time, Sianez, who aspired to succeed Tom Monson as the chief of police upon his 

imminent retirement, “vehemently opposed the merger [of management and 

nonmanagement employees for bargaining purposes] and expressed his disdain for such 
4

action.” According to the federal court complaint, Sianez explained that “merg[ing]”

management employees’ representation with the rank-and-file members of the 

Association would make Sianez “look weak to City Hall.” Sianez allegedly stated there 

were promotions to the captain position that would be available in the “next few months”

and that it would “not look good” for those who voted to merge. 

Plaintiffs further alleged that they disclosed to the Association’s members

that Sianez, in his capacity as the potential chief of police, threatened fellow members of 

the Association that he would use his power as chief against them, and that such conduct

presented a potential conflict of interest. At plaintiffs’ urging, the management 

employees in the Association voted in favor of merging with the Association for labor 

matters. Those in favor of the merger included plaintiffs, Forsyth, and Worrall. Sianez 

and Sells voted against it. 

Plaintiffs asserted that Sianez thereafter began to treat them differently. 

Plaintiffs both pursued a promotion to the rank of captain. They alleged: 

Notwithstanding that they were both highly qualified, Holliday was ranked “third” in line 

for the promotion and Shea “failed” the process. Sells, who had supported Sianez’s 

position on the merger, was promoted to captain by Monson and Sianez. After Worrall

learned that there was another captain position open, he “changed his vote” on the merger 

issue to “[e]nsure his promotion to Captain.” Sianez and Monson gave Holliday a “lesser 

evaluation”; Sianez told Holliday that Holliday’s labor and political activities were a 

reason for the lesser evaluation. Plaintiffs also alleged in the federal court complaint,

they “have taken all necessary steps to perfect this action, including exhausting any and 

all appropriate and/or viable administrative remedies. To that end, Plaintiffs ha[ve] filed 

a claim for damages pursuant to Cal. Gov’t Code §§ 910, et seq. This claim was 

rejected.” 
5

III.

ON THE GROUND PLAINTIFFS FAILED TO EXHAUST INTERNAL ADMINISTRATIVE 

REMEDIES, THE FEDERAL DISTRICT COURT DISMISSES PLAINTIFFS’ FEDERAL CLAIMS

AND POBRA CLAIM WITH PREJUDICE, AND DISMISSES THE MMBA AND LABOR CODE 

VIOLATION CLAIMS WITHOUT PREJUDICE.

In May 2012, the federal district court granted the City, Sianez, and 

Monson’s motion to dismiss the federal court complaint. The court dismissed plaintiffs’ 

First Amendment retaliation claim, Fair Labor Standards Act of 1838 retaliation claim,

and the POBRA claim with prejudice. The court dismissed without prejudice plaintiffs’

claims for violations of the MMBA and Labor Code sections 1102 and 1102.5, on the 

ground plaintiffs failed to exhaust the internal administrative remedies articulated in the 

MOU between the City and the Association. 

IV.

PLAINTIFFS FILE AN AMENDED COMPLAINT IN THE TRIAL COURT; THE 

TRIAL COURT SUSTAINS THE CITY’S DEMURRER WITH LEAVE TO AMEND;

PLAINTIFFS FILE A SECOND AMENDED COMPLAINT.

Plaintiffs filed a complaint against the City and a first amended complaint 

in the trial court, neither of which is included in our appellate record. The City demurred 

to the first amended complaint. The trial court sustained the demurrer as to two causes of 

action in the amended complaint (which, according to the respondent’s brief, were 

plaintiffs’ claims for retaliation in violation of the MMBA and for violation of Labor 

Code section 1102.5), on the ground plaintiffs failed to exhaust their internal 

administrative remedies. 

The trial court also sustained the demurrer as to the “second cause of 

action” (which was for violation of Labor Code section 1102.5, according to the 

respondent’s brief), based on plaintiffs’ failure to exhaust external administrative 
6

remedies. The court’s order provided plaintiffs 10 days’ leave to file a second amended 

complaint. 

Plaintiffs filed a second amended complaint which contained one cause of 

action for retaliation in violation of the MMBA and one cause of action for retaliation in 

violation of Labor Code section 1102.5. The second amended complaint contained the 

same allegations as in the federal court complaint, as summarized ante. 

In addition, the second amended complaint alleged Sianez also told Shea 

that he would not give him the necessary approval to attend a prestigious three-month 

FBI National Academy program in Virginia unless Shea pledged his absolute loyalty to 

Sianez. The second amended complaint also contained allegations addressing the 

exhaustion of administrative remedies issue, which were not included in the federal court 

complaint. It alleged: “Association President Dave Martinez (‘Martinez’), on behalf of 

Plaintiffs, met with Chief Sianez and Deputy City Manager Jim Vanderpool to discuss 

the Plaintiffs’ complaints. In or about November or December of 2010, Martinez sent a 

city wide email that discussed the impropriety of the promotional process for the Captain 

position. Martinez even separately spoke with Mayor Fred Smith, Councilmember Miller 

Oh, and Director of Human Resources Eddie Fenton regarding the impropriety of the 

promotional process for the Captain position. Mayor Smith told Martinez, ‘there’s 

nothing you can do about this.’” The second amended complaint further alleged: 

“Plaintiff Holliday on different occasions met with a member of the City Council, City 

Manager Rick Warsinski, and Sianez in an attempt to put the City on notice of the 

Plaintiffs’ claims and resolve this matter informally. Holliday additionally met with 

Warsinski and Sianez several times in vain to voice his concerns. Plaintiff Shea also 

discussed Plaintiffs’ complaints with a Councilmember. Plaintiffs were never given any 

further direction from the City regarding any further internal remedy, and Defendant 

failed to investigate the claims presented by Plaintiffs.” 
7

The City filed a demurrer to the second amended complaint, asserting that 

the demurrer should be sustained without leave to amend as to both causes of action 

because plaintiffs had not exhausted their internal administrative remedies. The City also 

asserted the demurrer should be sustained without leave to amend as to the cause of 

action for retaliation in violation of Labor Code section 1102.5, on the additional grounds 

plaintiffs had not (1) exhausted their external administrative remedies with the California 

Labor Commissioner, (2) complied with the claims presentation requirements of the 

California Tort Claims Act, and (3) stated facts sufficient to constitute a cause of action 

because plaintiffs had not engaged in any protected activity. 

V.

THE TRIAL COURT SUSTAINS THE DEMURRER; PLAINTIFFS APPEAL.

The trial court sustained the demurrer to the second amended complaint. 

As to the cause of action for retaliation in violation of the MMBA, the demurrer was 

sustained without leave to amend. As to the cause of action for retaliation in violation of 

Labor Code section 1102.5, the demurrer was sustained with 10 days’ leave to amend. 

Plaintiffs did not thereafter file an amended pleading. The court dismissed the action and 

entered judgment in favor of the City. 

Plaintiffs appealed. 

DISCUSSION

I.

STANDARD OF REVIEW

“We independently review the ruling on a demurrer and determine de novo 

whether the pleading alleges facts sufficient to state a cause of action. [Citation.] We 

assume the truth of the properly pleaded factual allegations, facts that reasonably can be 
8

inferred from those expressly pleaded, and matters of which judicial notice has been 

taken. [Citation.] We construe the pleading in a reasonable manner and read the 

allegations in context. [Citation.] ‘We affirm the judgment if it is correct on any ground 

stated in the demurrer, regardless of the trial court’s stated reasons. [Citation.]’ 

[Citation.]” (Entezampour v. North Orange County Community College Dist. (2010) 190 

Cal.App.4th 832, 837.)

“Where a demurrer is sustained without leave to amend, the reviewing 

court must determine whether the trial court abused its discretion in doing so. [Citation.] 

It is an abuse of discretion to deny leave to amend if there is a reasonable possibility that 

the pleading can be cured by amendment. [Citation.] Regardless of whether a request 

therefore was made, unless the complaint shows on its face that it is incapable of 

amendment, denial of leave to amend constitutes an abuse of discretion. [Citation.] The 

burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not 

up to the judge to figure that out. [Citation.] Plaintiff can make this showing in the first 

instance to the appellate court. [Citation.]” (Roman v. County of Los Angeles (2000) 85 

Cal.App.4th 316, 322.) 

II.

PLAINTIFFS’ CLAIMS WERE SUBJECT TO THE GRIEVANCE PROCEDURE SET FORTH IN THE 

MOU; PLAINTIFFS FAILED TO EXHAUST THEIR INTERNAL ADMINISTRATIVE REMEDIES BY 

FAILING TO FOLLOW THE MOU’S GRIEVANCE PROCEDURE.

The City contended in its demurrer that both of plaintiffs’ claims fail 

because plaintiffs had not and could not allege they exhausted the internal administrative 

remedies set forth in the MOU between the City and the Association. “In general, a party 

must exhaust administrative remedies before resorting to the courts. [Citations.] Under 

this rule, an administrative remedy is exhausted only upon ‘termination of all available, 

nonduplicative administrative review procedures.’” (Coachella Valley Mosquito & 
9

Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 

1072, 1080 (Coachella).) 

Here, the trial court granted the City’s request that the court take judicial 

notice of, inter alia, the MOU in support of the demurrer. Plaintiffs do not challenge the 

court’s ruling on the City’s request for judicial notice in this appeal.

The MOU states that “a grievance shall be considered as any matter for 

which appeal is not provided for concerning a dispute about the interpretation or 

application of any ordinance, rule or regulation governing personnel practices or working 

conditions.” Federal District Court Judge Selna, in a detailed order granting the motion 

to dismiss the federal court complaint, concluded that the claims at issue fell within the 

grievance procedure, stating in part, as follows: “In the first cause of action, Plaintiffs

claim that [the City] violated the MMBA when it failed to promote them and gave 

Holliday a lower performance evaluation than he had received previously because of 

Plaintiffs’ statements and vote during an Association meeting. . . . Finally, regarding the 

third cause of action, California Labor Code section 1102.5 states, in part, that an 

employer ‘may not retaliate against an employee for disclosing information to a 

government or law enforcement agency,’ where the employee reasonably believes the 

information discloses a state or federal law violation. [Citation.] To the extent that 

Plaintiffs allege facts to support this claim, Plaintiffs assert that [the City], through its 

Police Chief, retaliated against them for disclosing a ‘possible conflict of interest between 

the potential chief of police [Sianez] making threats to fellow [A]ssociation members and 

using his impending power against them.’. . . [¶] All three causes of action involve an 

alleged abuse of power in the Department and constitute a ‘grievance’ within the 

meaning of the M[OU]. Central to Plaintiffs’ complaint is the allegation that Si[a]n[e]z, 

acting on behalf of [the City], unlawfully abused his power in failing to promote 

Holliday.” 
10

As Judge Selna explained, the City’s Municipal Code section 2.24.020 

provides that: “No one who holds, or who is seeking . . . appointment to any office or 

employment in the city shall, directly or indirectly, use, promise, threaten or attempt to 

use any office, authority or influence, whether then possessed or merely anticipated, to

. . . aid or obstruct any individual person in securing, or to prevent any individual person 

from securing, any position, . . . [or] promotion, . . . upon consideration or condition that 

the vote or political influence or action of such person . . . shall be given or used on 

behalf of, or withheld from, any candidate, officer or party, or upon any other corrupt 

condition or consideration.” Judge Selna noted that section 2.20.150 of the City’s 

Municipal Code further provides that “[n]o person in the competitive service system . . .

shall be . . . discriminated against because of political opinions or affiliations.” He

concluded: “Thus, [the City]’s Municipal Code governs Plaintiffs’ claims that they were 

discriminated against based on the political opinions they expressed in the Association 

meeting. Accordingly, the Department’s failure to abide by [the City]’s Municipal Code 

in this personnel matter is a ‘grievance’ within the meaning of the M[OU].” 

Judge Selna further stated in his minute order: “Additionally [the City]’s 

Personnel Rules and Regulations provide that promotional examinations, ‘shall be 

impartial, of a practical nature and shall relate to those subjects which . . . fairly measure 

the relative capacities of the persons examined to execute the duties and responsibilities 

of the class to which they seek to be appointed.’. . . Thus, [the City]’s Personnel Rules 

and Regulations also govern[] Plaintiffs’ allegations regarding the promotion process. 

Accordingly, [the City]’s failure to implement these rules and regulations is a ‘grievance’ 

within the meaning of the M[OU] and must be raised through the Grievance Procedure. 

(Compare Lloyd[ v. County of Los Angeles (2009)] 172 Cal.App.4th [320,] 326-27 

(finding that county employee was not obligated to exhaust internal administrative 

remedy because his whistleblowing claim was not governed by the internal rules on 

which the county relied). [¶] In short, Plaintiffs’ allegations in the first [(retaliation in 
11

violation of the MMBA)] . . . and fifth [(retaliation in violation of Labor Code 

section 1102.5)] causes of action are ‘grievances’ as defined in the M[OU].” (Italics 

added, underscoring omitted.) 

Judge Selna’s analysis is well founded and we agree that the retaliation in 

violation of the MMBA and retaliation in violation of Labor Code section 1102.5 claims 

in the second amended complaint, which were based on virtually identical allegations as 

those supporting the claims in the federal court complaint before Judge Selna, qualified 

as grievances within the meaning of the MOU.

As mentioned in Judge Selna’s order, plaintiffs did not allege in the federal 

court complaint that they submitted their claims to the MOU’s grievance procedure and 

thus exhausted their internal administrative remedies. Plaintiffs did not allege in their 

second amended complaint, nor argue in their appellate briefs, that they have done so. 

The second amended complaint does not even mention the MOU’s grievance procedure. 

In their opening brief, plaintiffs argue that exhausting their internal administrative 

remedies would have been futile. We turn to address that issue.

III.

PLAINTIFFS DID NOT ALLEGE FUTILITY IN EXHAUSTING

THEIR INTERNAL ADMINISTRATIVE REMEDIES.

In their opening brief, plaintiffs argue: “Under the facts pled, it is clear that 

[plaintiff]s complained of the adverse actions to the final decision-maker in the grievance 

policy—the City Manager—as well as numerous other high-ranking City officials, 

including the police chief, to resolve this issue prior to seeking relief from this Court.” 

They argue their “complaints fell on deaf ears. [They] also submitted a Government 

Claim to the City challenging the actions taken against them. . . . The City rejected that 

claim. . . . The City’s demurrer evidenced the fact that the City, to this day, denies that 

Plaintiffs were subjected to discrimination and retaliation. Requiring [plaintiff]s to file a 
12

formal grievance with their immediate supervisors—after the City’s top officials have 

rejected the same claim—would be futile.” 

The California Supreme Court has explained: “The doctrine requiring 

exhaustion of administrative remedies is subject to exceptions. [Citation.] Under one of 

these exceptions, ‘[f]ailure to exhaust administrative remedies is excused if it is clear that 

exhaustion would be futile.’ [Citations.] ‘The futility exception requires that the party 

invoking the exception “can positively state that the [agency] has declared what its ruling 

will be on a particular case.”’ [Citations.]” (Coachella, supra, 35 Cal.4th at 

pp. 1080-1081.) “For the futility exception to apply, it is not sufficient that a party can 

show what the agency’s ruling would be on a particular issue or defense. Rather, the 

party must show what the agency’s ruling would be ‘“on a particular case.” [Citation.] 

This follows from the exhaustion doctrine itself, which ‘precludes review of an 

intermediate or interlocutory action of an administrative agency.’ (Alta Loma School 

Dist. v. San Bernardino County Com. on School Dist. Reorganization (1981) 124 

Cal.App.3d 542, 554 . . . ; see also McHugh v. County of Santa Cruz (1973) 33 

Cal.App.3d 533, 538-539 . . . [exhaustion doctrine ‘requires that a party must not only 

initially raise the issue in the administrative forum, but he must proceed through the 

entire proceeding to a final decision on the merits of the entire controversy’].)” 

(Coachella, supra, 35 Cal.4th at p. 1081.)

As pointed out by Judge Selna, regarding the federal court complaint, 

plaintiffs “broadly assert that they ‘have taken all necessary step[s] to perfect this action, 

including exhausting any and all appropriate and/or viable administrative remedies’” and 

“suggest that they perfected their MMBA [claim] by filing a claim for damages pursuant 

to California Government Code section 910 et seq. and they assert that ‘there are no other 

appropriate and/or viable administrative remedies to exhaust.’. . .” Judge Selna observed 

such assertions were insufficient to allege that plaintiffs utilized the grievance procedure, 
13

or why, if at all, their claims could bypass the grievance procedure. He also noted 

plaintiffs did not plead any facts showing why the grievance procedure was not viable. 

Plaintiffs contend their new allegations in the second amended complaint 

show that submitting their claims to the City’s grievance procedure would have been 

futile. But, as discussed ante, in order to show that exhausting the internal administrative 

remedies would be futile, plaintiffs must be able to “‘“positively state that the [agency] 

has declared what its ruling will be on a particular case.”’ [Citations.]” (Coachella, 

supra, 35 Cal.4th at pp. 1080-1081.) While the second amended complaint alleged that 

plaintiffs directly and through the Association’s president “discussed” their complaints 

with various individuals including Sianez, there is no allegation regarding the timing or 

substance of those conversations, much less an allegation that anyone with authority 

under the MOU rejected any grievance by plaintiffs.

Most significantly, the allegations of plaintiffs’ communications do not 

match the required steps clearly set forth in the MOU, especially grievances to the City’s

manager. The grievance procedure in the MOU states as follows: “Whenever an 

employee feels that the policy of the City is not being appropriately applied to his 

circumstances, he/she shall take the following action: [¶] A. The dispute should be 

discussed fully with the employee’s most immediate supervisor, who should make every 

effort to dispose of said dispute in a fair and equitable manner and in accordance with 

established policy of the City. After the employee and the supervisor have discussed the 

incident, the supervisor will give the employee a verbal or written response within two 

(2) working days. [¶] B. The process enunciated in Number A shall continue through the 

line of supervision, up to and including the Department Head, if the aggrieved party is 

not satisfied with the resolution at the initial or preceding step(s). [¶] C. Should the 

dispute not be resolved by the Department Head to the satisfaction of both parties, the 

employee will notify the Human Resources Manager of the dispute. The Human 

Resources Manager may interview both parties in the dispute and others affected and 
14

report those findings to the City Manager and recommend steps to be taken to resolve the 

problem within the Department. Within the (10) working shifts, the parties will be 

provided with a written response from the City Manager, which is binding and not 

subject to appeal pursuant to Section 2-86 of the Administrative Section of the City 

Code.”1 

Had plaintiffs submitted their claims to the grievance procedure, they 

would have ultimately received a written response from the City’s manager regarding the 

resolution of their complaints. There is no allegation in the second amended complaint 

that the City’s manager, the human resources manager, or any other individual identified

in the grievance procedure other than Sianez himself, communicated, directly or 

indirectly, any kind of decision regarding plaintiffs’ claims. Although plaintiffs allege in 

the second amended complaint that the City’s mayor told the Association’s president,

Martinez, that “there’s nothing you can do about this,” the mayor does not have a role in 

the MOU’s grievance procedure or in connection with the ultimate resolution of 

plaintiffs’ claims. The mayor’s opinion about whatever claims Martinez described to him 

(the second amended complaint does not allege the substance of Martinez’s conversations

 

1

 Citing the California Practice Guide on Employment Litigation, plaintiffs also 

argue they were not required to exhaust any internal administrative remedies before filing 

their lawsuit because the MOU’s grievance procedure did not contain a “quasi-judicial 

proceeding.” (Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter 

Group 2013) ¶ 16:372.7, p. 16-60 (rev. # 1, 2013).) But the California Practice Guide 

defines “‘quasi-judicial proceeding’” as involving “i.e., one in which the employees have 

adequate notice and opportunity to appear and present evidence supporting their claims.” 

(Ibid.) The express language of the grievance procedure shows that plaintiffs would have 

had the opportunity to be heard and present any evidence supporting their claims. There 

are no allegations in the second amended complaint showing otherwise. Plaintiffs, 

therefore, have failed to assert allegations or cite legal authority supporting their position 

that they should be excused from exhausting internal administrative remedies because the 

MOU’s grievance procedure was insufficiently “quasi-judicial.” 
15

with the mayor) is irrelevant to the issue of whether plaintiffs pleaded facts showing 

futility. Similarly, allegations regarding plaintiffs’ and Martinez’s conversations with the 

City’s council members, who also do not have any role in the grievance procedure or 

ultimate resolution of plaintiffs’ claims, are similarly irrelevant to show the futility of 

plaintiffs submitting their claims to the grievance procedure.

Because plaintiffs failed to allege facts supporting the futility exception to 

the requirement they exhaust their internal administrative remedies under the MOU, the 

trial court properly sustained the City’s demurrer. The second amended complaint does 

not mention the MOU, much less address issues concerning its legal import. Apparently, 

plaintiffs have always based their case on the tactical strategy that their claims were not 

grievances under the MOU. Accordingly, plaintiffs have consistently ignored the 

existence of the MOU and its grievance procedure in their many complaints. But the 

federal district court and the state courts have found that plaintiffs’ claims were 

grievances under the MOU and plaintiffs’ position to the contrary is without merit. The 

law favors enforcement of the MOU and the procedures set forth therein. Plaintiffs have 

pleaded neither that they complied with the MOU nor any excuse for not doing so. Quite 

simply, the City is entitled to rely on the procedures set forth in the MOU, and all parties 

are bound by it.

Plaintiffs have not requested leave to amend either in their appellate briefs

or at oral argument, and have not explained how they might amend the second amended 

complaint to survive demurrer. We therefore do not reach the trial court’s other bases for 

sustaining the demurrer.
16

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.