I. INTRODUCTION

Plaintiff and appellant Ronny Cespedes appeals from a judgment denying his

petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) seeking judicial

review of the decision to terminate his employment as a full-time police officer with the

1 City of Montclair (city). The trial court denied his petition for failure to exhaust all

available administrative remedies prior to seeking judicial review.

On appeal, Cespedes does not contest that the administrative process provided for

appeal of his termination to the Montclair City Council, and he does not contest the fact

that he failed to avail himself of this remedy. Instead, Cespedes argues that his failure to

exhaust his administrative remedy was excused because (1) appealing his termination to

the city council would have been a futile act; (2) the city council had a financial interest

in the outcome of his administrative proceeding, such that it could not sufficiently act as

an impartial tribunal to afford him due process; and (3) the procedures for any appeal to

the city council were too uncertain or inadequate.

We conclude that Cespedes’s claims for excuse, other than futility, have been

forfeited for failure to raise those issues in the trial court proceedings. With respect to

Cespedes’s claim of futility, we find the trial court’s findings are supported by substantial

evidence in the record, and we affirm the judgment.

II. FACTS AND PROCEDURAL HISTORY

A. Procedural History

In 2014, Cespedes was employed as a full-time police officer with the city’s police

department.

On March 10, 2014, Cespedes received a written notice of intent to discipline from

his supervisor. The notice indicated that Cespedes had been investigated for 14 charges

of misconduct, 12 charges had been sustained following the investigation, and his

supervisor was recommending Cespedes be terminated from his employment as a result.

2 The notice further informed Cespedes that he had the right to present a predisciplinary

response to the chief of police pursuant to a memorandum of understanding (MOU)

between the city and the Montclair Police Officer’s Association.

Following Cespedes’s predisciplinary response, the chief of police dismissed one

of the 12 charges but otherwise determined that the termination of Cespedes’s

employment was an appropriate disciplinary action in light of the remaining charges.

On June 9, 2014, Cespedes submitted a written notice of appeal to the city

manager pursuant to the terms of the MOU.

In July 2014, while his administrative appeal to the city manager was still pending,

Cespedes filed a government claim with the city pursuant to Government Code

section 910. Cespedes asserted a claim for damages on the basis that the city’s

disciplinary action against him constituted impermissible retaliation and wrongful

termination. The city took no action on the claim and, as a result, it was rejected by

operation of law.

On July 24, 2014, a hearing on Cespedes’s administrative appeal to the city

manager was held, and the city manager issued a written decision upholding Cespedes’s

termination on September 29, 2014.

On October 1, 2014, Cespedes provided written notice of a further appeal of the

disciplinary action, requesting the matter be submitted to advisory arbitration pursuant to

the terms of the MOU.

In March 2015, while his appeal to advisory arbitration was still pending,

Cespedes filed a civil suit for wrongful termination against the city.

3 Evidentiary hearings in the parallel advisory arbitration were conducted between

August 2015 and October 2016. During these proceedings, the city withdrew one of the

charges against Cespedes. Additionally, while the arbitration proceedings were still

ongoing, the city filed its answer to Cespedes’s civil complaint, generally denying the

allegations of the complaint and asserting 41 purported affirmative defenses. One of

those purported affirmative defenses alleged: “At all times relevant to this litigation,

[Cespedes] was, in fact, guilty of the offenses and any lesser included or related offenses

for which he was investigated.”

In February 2017, following the presentation of evidence in arbitration, the city

agreed to voluntarily dismiss two additional charges, leaving only eight charges for the

arbitrator to resolve. On May 10, 2017, the arbitrator issued a written decision in the

form of an advisory opinion and recommended award. The arbitrator recommended that,

of the remaining charges against Cespedes, five charges be sustained in their entirety, two

charges be sustained in part, and one charge not be sustained. The arbitrator also

recommended that Cespedes’s termination be upheld based upon the sustained charges.

Cespedes did not respond to the arbitrator’s decision; and, on July 10, 2017, the

city sent correspondence to Cespedes indicating that, under the terms of the MOU,

Cespedes had the right to appeal the arbitrator’s decision to the city council, but Cespedes

had failed to do so within the time provided for such appeal. The city took the position

that the failure to appeal to the city council constituted an abandonment of the

administrative process, barring judicial review for failure to exhaust his administrative

remedies.

4 B. Petition for Writ of Administrative Mandamus

On August 4, 2017, Cespedes filed a petition for writ of administrative mandamus

in the trial court pursuant to Code of Civil Procedure section 1094.5, seeking judicial

review of the arbitrator’s decision. Following demurrer, Cespedes filed a second

amended petition in which he alleged he should be excused from exhausting the available

administrative remedy of appealing to the city council because such action would be

futile based upon the city’s denial of his prior government claim and its answer in

response to his civil complaint.

In its answer to the petition, the city asserted seven purported defenses. Among

other things, the city argued that Cespedes’s failure to exhaust his administrative

remedies precluded judicial review as a jurisdictional matter; Cespedes’s failure to appeal

the arbitrator’s decision to the city council constituted a withdrawal of his claim under the

terms of the MOU and, as a result, there was no final decision subject to review; and

Cespedes failed to provide any evidence or facts to support his claim that appeal to the

city council would have been futile.

The trial court bifurcated the trial on the issue of Cespedes’s alleged failure to

exhaust his administrative remedies, setting that matter to be heard and decided first. At

the time of the hearing, the trial court orally provided a tentative ruling that the petition

should be denied for Cespedes’s failure to exhaust his administrative remedies. Cespedes

did not contest the fact that he failed to appeal to the city council, but he again argued

that doing so would be futile.

5 In support of his argument, Cespedes relied on the fact that the termination of his

employment had been upheld during multiple levels of administrative review; as well as

the fact that in the parallel civil litigation, the city’s answer, in one of the city’s purported

affirmative defenses, alleged that he was guilty of the offenses for which he was

investigated. In response, the city pointed out that its answer was filed prior to any

evidentiary hearings were conducted in arbitration and argued that it initially asserted all

available defenses simply to protect its rights pending discovery.

After taking the matter under submission, the trial court issued a written ruling

denying the petition for writ of administrative mandamus on the basis that Cespedes

failed to exhaust his administrative remedies and failed to show futility as a basis for

excuse. Judgment was entered on June 27, 2019, and Cespedes appeals.

III. DISCUSSION

On appeal, Cespedes does not contest the fact that an appeal to the city council

was an administrative remedy available to him, and he failed to exhaust that remedy prior

to filing his petition for writ of administrative mandamus. Instead, Cespedes contends

the trial court erred when it concluded that he failed to establish an adequate excuse for

his failure to exhaust his administrative remedies. Specifically, Cespedes argues that his

failure should have been excused because (1) an appeal to the city council would have

been futile; (2) the city council was financially biased, such that it could not have acted as

an impartial tribunal sufficiently enough to protect his due process rights; and (3) the

procedures for the city council review were uncertain and inadequate. We consider only

6 the merits of Cespedes’s first argument and deem the remaining arguments forfeited for

failure to raise them in the trial court.

A. General Legal Principles and Standard of Review

“A writ of mandate under [Code of Civil Procedure] section 1094.5 may be issued

to review an administrative decision only if that decision is final. [Citation.] This

requirement is regarded as an aspect of the exhaustion requirement. [Citation.] ‘Under

the doctrine of the exhaustion of administrative remedies, a party must go through the

entire proceeding to a “final decision on the merits of the entire controversy” before

resorting to the courts for relief.’ ” (Bollengier v. Doctors Medical Center (1990)

222 Cal.App.3d 1115, 1125.)

Generally, the exhaustion of administrative remedies is a jurisdictional

prerequisite to resort to the courts and not a matter of judicial discretion. (Sierra Club v.

San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 496.) However,

“[t]he 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.” ’ ” (Coachella Valley Mosquito &

Vector Control Dist. v. California Public Employment Relations Bd. (2005)

35 Cal.4th 1072, 1080-1081.)

“We review the denial of [a] petition for a writ of mandate on the ground of failure

to exhaust administrative remedies under different standards depending on the basis of

7 that decision. We exercise independent review over questions of law such as the

interpretation of applicable statutes or codes and whether the Doctrine applies in a given

case.” (SJCBC, LLC v. Horwedel (2011) 201 Cal.App.4th 339, 345.) However, “we

apply the substantial evidence test to factual matters concerning what a party did or did

not do.” (Ibid.) Thus, questions regarding whether a party failed to exhaust

administrative remedies are reviewed for substantial evidence. (Felkay v. City of Santa

Barbara (2021) 62 Cal.App.5th 30, 41.)1

Additionally, the party alleging that administrative exhaustion does not apply has

the burden of establishing an exception, such as futility. (Public Employees’ Retirement

System v. Santa Clara Valley Transportation Authority (2018) 23 Cal.App.5th 1040,

1048; Upshaw v. Superior Court (2018) 22 Cal.App.5th 489, 507 [party fails to establish

futility where there is “no evidence the [respondent] had taken any position, let alone

declared what its ruling would be”].) In such a case, “ ‘it is misleading to characterize

the failure-of-proof issue as whether substantial evidence supports the judgment. . . . [¶]

[Instead], where the issue on appeal turns on a failure of proof at trial, the question for a

1 We disagree with Cespedes’s assertion that we may review his claims de novo because the evidence in this case is undisputed. “Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence [the appellate] court is without power to substitute its own inferences or deductions for those of the trier of fact, which must resolve such conflicting inferences in the absence of a rule of law specifying the inference to be drawn.” (Schwan v. Permann (2018) 28 Cal.App.5th 678, 693-694.) As we explain ante, even if we were to assume the evidence is truly undisputed in this case, the undisputed facts give rise to competing inferences such that the substantial evidence standard is the proper standard of review when considering whether the trial court engaged in reversible error in finding Cespedes failed to establish futility as an excuse for exhaustion of his administrative remedies.

8 reviewing court becomes whether the evidence compels a finding in favor of appellant as

a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s

evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and

weight as to leave no room for a judicial determination that it was insufficient to support

a finding.” [Citation.]’ [Citation.] The appellate court cannot substitute its factual

determinations for those of the trial court; it must view all factual maters most favorably

to the prevailing party and in support of the judgment.” (Dreyer’s Grand Ice Cream, Inc.

v. County of Kern (2013) 218 Cal.App.4th 828, 838.)

Thus, we review the record to determine whether the evidence before the trial

court was of such character and weight as to require a finding that any administrative

appeal to the city council would have been futile.

B. Substantial Evidence in the Record Supports the Trial Court’s Findings on the Issue

of Futility

Here, in order to establish futility as an excuse for his failure to exhaust his

administrative remedies, Cespedes relied solely on the procedural history of the

administrative process and the parallel civil litigation. However, this evidence was

clearly not of such character and weight that it would compel a finding of futility.

Cespedes argues that since his prior steps in the administrative process had been

unsuccessful in overturning the ultimate decision to terminate his employment, any

further appeal to the city council would have been equally unsuccessful. However, this

characterization overlooks important facts from each stage of the administrative process.

For example, the initial notice of intent to discipline advised Cespedes he had been

9 investigated for 14 charges of misconduct, but only 12 charges were sustained upon the

conclusion of the administrative investigation. Following an administrative review by the

chief of police, an additional charge was dismissed, and as part of his administrative

appeal to advisory arbitration, the city withdrew three additional charges. Finally, of the

eight remaining charges, the arbitrator’s advisory decision recommended five charges be

sustained in their entirety, two charges be sustained in part, and one charge not be

sustained.

Thus, while Cespedes was not successful in overturning his termination, the record

indicates that at each step of the administrative process, the charges against Cespedes

were reduced upon consideration of the evidence. In light of this record, we cannot say

that the evidence before the trial court required a finding that appealing to the city council

would have been futile. Had an appeal to the city council resulted in a further reduction

of charges—as apparently occurred on multiple occasions during the course of the

administrative process—it may well have resulted in final charges insufficient to support

termination as an appropriate form of discipline. Certainly, this is a reasonable inference

the trial court was entitled to draw from the evidence before it.

Cespedes’s reliance on the city’s conduct in the parallel civil litigation is also

unavailing. As the trial court correctly noted, because Cespedes’s government claim and

civil complaint were filed prior to the completion of the administrative process, it was

entirely consistent for the city to refuse to consider or settle these claims while the

administrative process was still pending. Presumably, if Cespedes was ultimately

10 successful in the course of seeking administrative review, it would result in a substantial

reduction of issues to be considered in any civil litigation.

Nor does the City’s assertion of an affirmative defense alleging that Cespedes was

guilty of the underlying conduct for which he was investigated compel a different

conclusion. Even assuming the assertion of this defense suggested that the outcome of an

appeal to the city council might have been predetermined, this was not the only evidence

before the trial court. The record also shows that following the filing of this pleading in

October 2015, the city agreed to withdraw two additional charges in February 2017 at the

conclusion of the evidentiary hearings in the advisory arbitration proceedings. Clearly,

the city’s subsequent withdrawal of charges during advisory arbitration was evidence

supporting a competing inference that the outcome of the administrative process was not

predetermined, notwithstanding the assertion of an affirmative defense in the parallel

civil litigation.

Under the substantial evidence standard of review, where two competing

inferences can reasonably be drawn from the evidence, it is for the trial court to

determine which inference to draw, and this court will not substitute its judgment for that

of the trial court. Because the evidence before the trial court was not of such character

and weight as to compel a finding that appealing to the city council would have been

futile, the trial court’s finding that Cespedes did not establish futility as a valid excuse for

his failure to exhaust his administrative remedies is supported by substantial evidence.

Where the trial court’s findings are supported by substantial evidence, Cespedes has not

met his burden on appeal to show reversible error.

11 C. Cespedes Is Not Entitled To Raise New Theories for the First Time on Appeal

Finally, we decline to consider Cespedes’s alternative theories as to why he should

be excused from exhausting available administrative remedies. These theories were not

raised in the trial court and are thus forfeited on appeal.

“If a party fails to raise an issue or theory in the trial court, we may deem

consideration of that issue or theory forfeited on appeal.” (Cabatit v. Sunnova Energy

Corp. (2020) 60 Cal.App.5th 317, 322.) “ ‘All issues, even those involving an alleged

constitutional violation, are subject to the rule of forfeiture, and a [party’s] failure to raise

the issue before the trial court will generally result in the appellate court’s refusal to

consider it.’ [Citation.] Considering an issue for the first time on appeal is often unfair

to the trial court, unjust to the opposing party, and contrary to judicial economy because

it encourages the embedding of reversible error through silence in the trial court.” (In re

M.H. (2016) 1 Cal.App.5th 699, 713-714.) Thus, “[i]t is elementary that an appellant

may not raise a new theory on appeal when the theory rests on facts that were either

controverted or not fully developed in the trial court.” (Tanguilig v. Neiman Marcus

Group, Inc. (2018) 22 Cal.App.5th 313, 330.)

Here, the record is clear that Cespedes raised only the issue of futility for the trial

court to consider as a basis for excusing the need to exhaust his administrative remedies.

Cespedes’s second amended petition alleged only futility as a potential excuse for his

failure to exhaust administrative remedies; his written submissions to the trial court made

no arguments addressing his failure to exhaust his administrative remedies, let alone any

12 argument he should be excused from that requirement;2 and the only grounds for excuse

raised at the time of the hearing was that of futility.3

We disagree with Cespedes’s characterization that we should exercise our

discretion to consider these arguments because they raise only questions of law on

undisputed facts. The question of whether any individual member of the city council or

the members collectively had sufficient financial interest in the outcome of Cespedes’s

administrative proceeding such that the city council could not act as a fair tribunal is a

question of fact. The issue cannot be resolved for the first time on appeal where the

record contains no evidence of the financial incentives or disincentives held by any

individuals or parties related to Cespedes’s termination.

Likewise, resolution of any alleged uncertainty in the language of the MOU with

respect to the procedures for appeal to the city council requires the presentation and

consideration of evidence. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 521

[“Although extrinsic evidence is not permitted in order to add to, detract from, or vary the

terms of an integrated written agreement, extrinsic evidence is admissible in order to

explain what those terms are.”]; Oakland-Alameda County Coliseum Authority v. Golden

2 We note that even after the city raised the issue of Cespedes’s failure to exhaust administrative remedies as a ground for denying the petition in its respondent’s brief before the trial court, Cespedes chose not to address the merits of that issue or argue any grounds for excuse in his reply.

3 While Cespedes’s counsel used the term, “biased,” to refer to the city council on one occasion, counsel did so only in support of the futility argument. There was no suggestion that the alleged bias was based upon financial considerations or that it was so extensive as to preclude Cespedes from obtaining a review sufficient to comply with the requirements of due process as Cespedes now asserts on appeal.

13 State Warriors, LLC (2020) 53 Cal.App.5th 807, 822 [same].)4 Thus, the failure to allege

the inadequacy of the MOU, with respect to the city council’s review procedures,

deprived the city of the opportunity to present potential evidence regarding how any

review by the city council would have been conducted.5 It would be manifestly unfair to

permit Cespedes to assert this issue for the first time on appeal, where the city could have

potentially presented evidence on the issue, if it had been raised in the trial court.

The failure to raise these arguments in the trial court below prevented the facts

from being fully developed, and it further deprived the trial court of the ability to make

relevant factual findings. Because Cespedes did not even suggest these alternative

theories in the trial court, the city had no occasion to present evidence or dispute any

facts that might have been relevant to these theories. Where the city’s silence may

simply have been a result of Cespedes’s failure to raise the issue below, we cannot

4 In reply, Cespedes attempts to avoid this conclusion by taking the position that he is not arguing that the terms of the MOU are “ambiguous,” notwithstanding the fact that he has expressly asserted that the terms of the MOU are “uncertain” as a ground for excuse. Cespedes does not explain why he believes this distinction makes a difference in the context of this appeal. We note that courts have used the two terms interchangeably in stating the rule permitting the admission of extrinsic evidence to interpret the terms of a contract. (See Schmidt v. Macco Constr. Co. (1953) 119 Cal.App.2d 717, 730 [“[If] the contract is uncertain or ambiguous, parole evidence is admissible to show what the parties meant by the uncertain or ambiguous word or phrase used in the written contract.”].)

5 For example, the city council may have adopted its own, internal rules or other procedures for conducting such reviews. Alternatively, the city might have presented evidence regarding how prior appeals of disciplinary matters subject to the MOU had been reviewed by the city council. (Southern Pacific Transportation Co. v. Santa Fe Pacific Pipelines, Inc. (1999) 74 Cal.App.4th 1232, 1240-1241 [“The terms of a writing can also ‘be explained or supplemented by course of dealing or usage of trade or by course of performance.’ ”].)

14 conclude that the underlying facts are truly undisputed, and we decline to exercise our

discretion to consider these arguments for the first time on appeal.

IV. DISPOSITION

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

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J. We concur:

McKINSTER Acting P. J.

CODRINGTON

J.

15