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Law Dictionary: California: Law Dictionary: Table of Contents

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California
Law Dictionary
Standard of Review-Demurrer
(Shuer v. Co. of San Diego)

Standard of Review-Demurrer
(Shuer v. Co. of San Diego)

DISCUSSION

            Shuer argues the trial court erred in finding that she failed to exhaust available administrative remedies before bringing her wrongful termination action and therefore erred in granting county's demurrer.  She first argues that as a probationary employee she had no administrative remedies to exhaust.  She contends that assuming such remedies exist, county is estopped from asserting any failure to exhaust because of the misleading and erroneous information it provided her concerning administrative remedies.  Shuer argues that in any case exhaustion was excused because any administrative remedy was inadequate, attempts to secure such remedy would have been futile, she was not provided adequate notice of such remedies and, finally, that it would violate public policy under the facts of this case to require she exhaust her administrative remedies before being allowed recourse to the courts.

            "When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations.  [Citation.].  Courts must also consider judicially noticed matters.  [Citation.]  In addition, we give the complaint a reasonable interpretation, and read it in context.  [Citation.]  If the trial court has sustained the demur[r]er, we determine whether the complaint states facts sufficient to state a cause of action."  (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

            A demurrer may properly be granted based on the failure to adequately plead an exhaustion of administrative remedies.  (Kirkpatrick v. City of Oceanside (1991) 232 Cal.App.3d 267, 277.)  A plaintiff must exhaust the administrative remedies available before resorting to the courts.  The issue is one of jurisdiction.  (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293.)  The exhaustion requirement applies to statutory administrative remedies and also to internal grievance procedures of public and private organizations.  (Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 474-477; Moreno v. Cairns (1942) 20 Cal.2d 531, 535; City of Los Angeles v. Superior Court (1966) 246 Cal.App.2d 73, 75-76.)

Shuer v. Co. of San Diego April 02, 2004-CA4/1-D041925

Shuer v. Co. of San Diego Apr 02 20044/2/04 CA4/1D041925

Apr 02 2004

D041925 [PDF] [DOC]

Shuer v. Co. of San Diego 4/2/04 CA4/1

California: Authoritative-Law Dictionary: Table of Contents    
Demurrer-Grounds-Failure to Plead -Exhaustion Administrative Remedires-(Shuer v. Co.San Diego)   
Demurrer, Standard of Review-Demurrer (Coldwell Banker v. Super. Ct.)  
Demurrer-Standard of Review-Demurrer-(WOLA)-(Shuer v. Co. of San Diego)   
Demurrer, Standard of Review-Demurrer Without Leave to Amend-(Liska v. Arns Law Firm)  

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