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March 10, 2026 Get Citation Alerts Download PDF Add Note

Belman v. Los Bagres Corp. CA2/2

California Court of Appeal

• Citations: None known
• Docket Number: B332423

• Precedential Status: Non-Precedential

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (4.6K)

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Combined Opinion

Filed 3/10/26 Belman v. Los Bagres Corp. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

LORENA BELMAN, B332423
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. VC065875)

v.

LOS BAGRES CORPORATION
et al.,

Defendants and
Appellants.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Brian F. Gasdia, Judge. Affirmed.

Payne & Fears and Clifford L. White for Defendants and
Appellants.

Law Offices of Timothy J. Donahue and Timothy J.
Donahue for Plaintiff and Respondent.
Defendants and appellants Los Bagres Corporation (Los
Bagres) and Juan Erasmo Garcia (collectively, appellants) appeal
from the judgment entered on a jury verdict finding them liable
for wrongful termination of plaintiff and respondent Lorena
Belman (respondent). Appellants contend the judgment is void
due to defects in the special verdict form, jury instructions and
because of respondent’s failure to exhaust her administrative
remedies. We conclude appellants fail to establish reversible
error and affirm the judgment.1

BACKGROUND
Respondent’s employment and lawsuits
Respondent was employed from approximately 2006 to
2016 as a waitress for Los Bagres, who operated a
restaurant/bar/nightclub in Pico Rivera, California, called A Mi
Hacienda. Juan Erasmo Garcia, Los Bagres’s chief executive
officer, was in charge of supervising and managing A Mi
Hacienda. Garcia’s duties included supervising respondent’s
work.
On April 6, 2016, respondent left her employment with Los
Bagres, claiming she was assaulted and sexually harassed. Juan
Erasmo Garcia averred he was in a consensual intimate
relationship with respondent, initiated by respondent in 2014.
Respondent claimed Juan Erasmo Garcia engaged in unwanted
touching, sexual comments, and sexually explicit text messages.
Respondent acknowledged having sexual relations with Juan

1 However, we deny respondent’s motion for sanctions for
frivolous appeal because it has not been shown that this appeal is
substantively baseless or brought solely to cause delay. (Cal.
Rules of Court, rule 8.276(a).)

2
Erasmo Garcia beginning in 2011 due to his threats of
withholding her pay and terminating her employment.
In October 2016, respondent brought a lawsuit against
appellants, asserting wrongful termination and wage-and-hour
claims. Respondent’s causes of action for wrongful termination
included a Tameny2 claim under California common law and a
claim under the Fair Employment and Housing Act (FEHA).
Respondent alleged her coworkers—Gizzelle Cabrera, Mariela
Garcia, and Jesus Erasmo Garcia—attacked her at A Mi
Hacienda on April 6, 2016.3 Respondent also alleged she was
forced against her will to have sexual relations with Juan Erasmo
Garcia. Respondent averred her employment was wrongfully
terminated due to these incidents. In December 2016, respondent
filed an amendment to complaint naming Los Bagres as a Doe
defendant.4
Respondent’s complaint attached the Department of Fair
Employment and Housing’s (DFEH) notice of filing of

2 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177–
178 (Tameny) (holding at-will employees may recover tort
damages from their employers for being discharged in
contravention of fundamental public policy).
3 Cabrera, Mariela Garcia, and Jesus Erasmo Garcia are not
parties to this appeal.
4 Respondent also filed an “amended cross/cross-complaint”
in October 2017 and a “second amended cross/cross[-]complaint”
in November 2017. These cross-complaints contained
substantially the same allegations as the underlying pleadings,
but they included additional causes of action for violation of
Labor Code section 2802, negligence per se (Lab. Code, § 3602),
and unfair business practices (Bus. & Prof. Code, § 17200). These
cross-claims were neither submitted to nor decided by the jury.

3
discrimination complaint and right-to-sue letter.5 Los Bagres was
not named as a respondent in the notice to the DFEH, which only
named Garcia and Gallarzo Property Holdings, LLC, Juan
Erasmo Garcia, and two other individuals.6
In February 2018, respondent brought a second lawsuit in
the Los Angeles County Superior Court (VC066907) against Juan
Erasmo Garcia, Cabrera, Mariela Garcia, and Jesus Erasmo
Garcia. This second action was based on the same underlying
allegations in the first lawsuit but included a variety of other tort
claims. In March 2019, this lawsuit was consolidated with the
first lawsuit, with the latter being designated as the lead case.
Ultimately, only the battery claim against Cabrera and Jesus
Erasmo Garcia in this lawsuit was submitted to and decided by
the jury.
The trial
Trial commenced in February 2023. The claims submitted
to and decided by the jury were the Tameny and FEHA causes of
action for wrongful termination against appellants and the
battery claim against Cabrera and Jesus Erasmo Garcia.7 There
were separate jury instructions providing the respective elements

5 In 2022, the DFEH was renamed the Civil Rights
Department. (Sen. Bill No. 189 (2021–2022 Reg. Sess.); Stats.
2022, ch. 48, § 30.) We will continue to refer to the agency as the
DFEH for consistency with the record and appellate briefs.
6 Respondent filed a first amended complaint (FAC) in May
2017, which contained substantially the same allegations. The
FAC did not include an amended filing with the DFEH naming
Los Bagres as a respondent.
7 Mariela Garcia was dismissed from the action in June 2019
following her successful motion for judgment on the pleadings.

4
of the Tameny and FEHA causes of action. A special verdict form
was used that included findings for each claim.
The jury trial ended on March 7, 2023. Appellants and
Cabrera were found liable, while Jesus Erasmo Garcia was found
to not be liable. The jury awarded $303,000 in total damages
against appellants and Cabrera.
On May 3, 2023, the trial court issued a statement of
decision. The statement of decision involved respondent’s various
requests for attorney’s fees and other nonjury issues. The court
indicated respondent was entitled to a discretionary award of
attorney’s fees for her FEHA claim under Government Code
section 12965, subdivision (c)(6).8 The court found the evidence at
trial, as well as the parties’ four stipulations and the jury’s
affirmative answers to the first six questions in the special
verdict form, required appellants to be strictly liable for the
sexual harassment under Government Code section 12940,
subdivision (j)(1).
Judgment was entered on June 14, 2023. A total amount of
$196,750 in damages was awarded against appellants and
Cabrera, jointly and severally.9 Appellants timely appealed.10

8 Government Code section 12965, subdivision (b), which
contains no attorney’s fees provision, was mistakenly cited in the
statement of decision.
9 The trial court reduced the original $303,000 damages
award by $106,250 to account for amounts respondent received
from her workers’ compensation settlement.
10 Appellants erroneously filed a second notice of appeal on
August 22, 2023, which they later abandoned.

5
CONTENTIONS ON APPEAL
Appellants assert four main arguments. First, appellants
contend the judgment as to the FEHA claim is void because the
special verdict form did not include all of the required elements of
the FEHA claim. Second, appellants argue the jury instructions
were incomplete and prejudicial because they failed to include
instructions defining “severe or pervasive” conduct. Third,
appellants assert the judgment against Los Bagres is void
because respondent failed to exhaust her administrative
remedies by naming Los Bagres in her DFEH complaint. Finally,
appellants maintain the judgment is void because the special
verdict form is hopelessly ambiguous and inconsistent as it
combines damages for multiple claims involving distinct parties.

DISCUSSION
I. Appellants fail to show reversible error as to the
special verdict form and jury instructions
A. Standard of review and applicable law
“We analyze the special verdict form de novo.” (Saxena v.
Goffney (2008) 159 Cal.App.4th 316, 325 (Saxena).) “‘When a
special verdict is involved as here, a reviewing court does not
imply findings in favor of the prevailing party. [Citations.] This
rule stems from the nature of a special verdict and its
“‘recognized pitfalls,’” namely, that it requires the jury to resolve
all of the controverted issues in the case, unlike a general verdict
which merely implies findings on all issues in one party’s favor.’”
(Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228,
1242.)
As to reviewing jury instructions, “[w]hether a jury
instruction is correct or erroneous is a question of law.” (TRC

6
Operating Co., Inc. v. Chevron USA, Inc. (2024) 102 Cal.App.5th
1040, 1098 (TRC Operating Co.).) “Challenges to jury instructions
are subject to a de novo standard of review.” (Sander/Moses
Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th
1086, 1094.) “However, ‘[i]t is the responsibility of counsel to
propose correct instructions and the court has no duty to modify
erroneous instructions submitted to it, and there is no error if it
simply rejects such instructions.’” (Collins v. County of San Diego
(2021) 60 Cal.App.5th 1035, 1055.) “[A]n appellant must
demonstrate that any alleged error in the jury instructions was
prejudicial, i.e., that it was probable the appellant would have
achieved a more favorable result without the error.” (Ibid.)
“Generally, the appropriate remedy for an instructional error
that is prejudicial is a reversal of the judgment and a remand for
a new trial.” (TRC Operating Co., supra, at p. 1098.)
B. The special verdict form contains sufficient
factual findings to support the FEHA claim
Appellants contend the judgment as to the FEHA claim
should be reversed because the special verdict form failed to
include each required element of the claim. We disagree.11
“A ‘special verdict must present the conclusions of fact as
established by the evidence, and not the evidence to prove them;

11 Respondent contends appellants waived challenges to the
alleged defects in the special verdict form and their failure to
object constituted invited error. The waiver rules, however, do not
apply to issues involving an absence of a factual finding
necessary to support a cause of action. (Behr v. Redmond (2011)
193 Cal.App.4th 517, 531–532 (Behr).) Further, the invited error
doctrine does not apply to a party’s failure to object to a special
verdict form. (Saxena, supra, 159 Cal.App.4th at pp. 328–329.)

7
and those conclusions of fact must be so presented as that
nothing shall remain to the Court but to draw from them
conclusions of law.’” (Saxena, supra, 159 Cal.App.4th at p. 325.)
“If a fact necessary to support a cause of action is not included in
such a special verdict, judgment on that cause of action cannot
stand.” (Behr, supra, 193 Cal.App.4th at p. 531.) “A special
verdict is ‘fatally defective’ if it does not allow the jury to resolve
every controverted issue.” (Saxena, supra, at p. 325.)
To establish unlawful harassment under FEHA, the
employee must show (1) an employee was subjected to harassing
conduct because of the employee’s protected status; (2) the
harassing conduct was severe or pervasive; (3) a reasonable
person in the employee’s circumstances would have considered
the work environment to be hostile, intimidating, offensive,
oppressive, or abusive; (4) the employee considered the work
environment to be hostile, intimidating, offensive, oppressive, or
abusive; (5) the employer knew or should have known of the
conduct and failed to take immediate and appropriate corrective
action; (6) the employee was harmed; and (7) the conduct was a
substantial factor in causing the employee’s harm. (CACI
No. 2521A.)
Appellants argue the special verdict form lacks findings the
harassing conduct was “severe or pervasive” and that such
conduct was objectively and subjectively hostile. While the special
verdict form does not use the specific terms “severe or pervasive,”
it contains the finding, “the working conditions [were] so
intolerable that a reasonable person . . . would have had no
reasonable alternative except to resign.” The “working
conditions” here are the conditions in which respondent was
“subjected to unwanted sexual harassment based upon her

8
gender.” The foregoing language encompasses the findings
needed to determine severe or pervasive conduct, which is
defined as “conduct that alters the conditions of employment and
creates a work environment that is hostile, intimidating,
offensive, oppressive, or abusive.” (CACI No. 2524.) To show
conduct was severe or pervasive, “[i]t is sufficient to prove that a
reasonable person who was subjected to the harassing conduct
would find that the conduct so altered working conditions as to
make it more difficult to do the job.” (Ibid.)
Thus, the special verdict form contains the required
reasonable person and altered work conditions findings by
indicating respondent’s work conditions, i.e., the harassing
conduct, were so intolerable as to effectively force a reasonable
person to resign. The jury found facts establishing an altered
work condition making the job more difficult in that a reasonable
person in respondent’s circumstances would have effectively been
forced to resign due to the intolerable work conditions. While the
precise terms constituting “severe or pervasive” are not used in
the special verdict form, the facts needed to make a finding of the
element are reflected in the form’s language.
As to the subjective component to the claim, the special
verdict form includes the finding the sexual harassment was
“unwanted” and respondent resigned because of the harassing
conduct. These factual findings necessarily show the element of
the claim that respondent herself considered the work
environment to be hostile, intimidating, offensive, oppressive, or
abusive. We note the jury instructions set forth each element of
the claim, including this subjective component. To the extent
there is any ambiguity in the special verdict form, appellants
waived those defects by failing to object to them in the underlying

9
proceedings. (See Behr, supra, 193 Cal.App.4th at pp. 529–530.)
Accordingly, the special verdict form is not fatally defective
because it did not preclude the jury from resolving each
controverted issue.
C. Appellants waived defects as to the finding of
damages, which is not fatally inconsistent
Appellants also argue the special verdict form is fatally
inconsistent, or “hopelessly ambiguous,” because it combines
damages for multiple parties and claims, making it impossible to
determine the amount of damages attributable to any particular
defendant or claim.
“A party who fails to object to a special verdict form
ordinarily waives any objection to the form.” (Behr, supra, 193
Cal.App.4th at p. 530.) “Failure to object to a verdict before the
discharge of a jury and to request clarification or further
deliberation precludes a party from later questioning the validity
of that verdict if the alleged defect was apparent at the time the
verdict was rendered and could have been corrected.” (Henrioulle
v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521.) “The forfeiture
rule generally applies in all civil and criminal proceedings.
[Citations.] The rule is designed to advance efficiency and deter
gamesmanship.” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247,
264 (Keener).) “‘“‘“The purpose of the general doctrine of waiver
[or forfeiture] is to encourage a defendant to bring errors to the
attention of the trial court, so that they may be corrected or
avoided and a fair trial had . . . .”’”’” (Ibid.) “‘“‘“The law casts upon
the party the duty of looking after his legal rights and of calling
the judge’s attention to any infringement of them. If any other
rule were to obtain, the party would in most cases be careful to be
silent as to his objections until it would be too late to obviate

10
them, and the result would be that few judgments would stand
the test of an appeal.”’”’” (People v. Simon (2001) 25 Cal.4th 1082,
1103.)
There are exceptions to waiver. (Behr, supra, 193
Cal.App.4th at p. 530.) “Waiver is not found where the record
indicates that the failure to object was not the result of a desire
to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’”
(Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d
452, 456, fn. 2.) “Nor is an objection required when the verdict is
fatally inconsistent.” (Behr, supra, at p. 530.)
We conclude appellants waived their arguments as to the
alleged defects in the jury’s finding of damages because
appellants failed to raise these issues in the underlying
proceedings. Indeed, appellants concede they agreed to the form
and never objected to any defects, nor did they raise any issues
with the verdict. Appellants suggest the alleged defects in the
special verdict form were simply overlooked and their failure to
object was not due to their desire to gain a technical advantage.
However, this does not establish the record affirmatively showed
appellants’ failure to object was not to gain an advantage. For
example, there are no facts showing confusion on this issue
among the parties and/or the trial court preventing appellants
from raising an objection.
The special verdict form clearly contains no language or
areas prompting the jury to assign specific amounts of damages
to each defendant. The damages found are clearly not specifically
allocated among the defendants. Hence, appellants cannot claim
these alleged defects in the form and the finding of damages were
not apparent. Appellants’ silence on this issue is consistent with
an intention to withhold the matter to later gain a technical

11
advantage. And appellants’ assertions here are entirely at odds
with the purposes of the waiver doctrine, which requires errors be
timely brought before the court so they can be corrected or
avoided. (See Keener, supra, 46 Cal.4th at p. 264.) If a party can
simply remain silent on an issue and later claim it was
overlooked, certainly the doctrine would almost never apply.
Further, the special verdict form is not fatally inconsistent,
or “hopelessly ambiguous,” merely because specific amounts of
damages were not assigned to each defendant. “‘“If the verdict is
ambiguous the party adversely affected should request a more
formal and certain verdict. Then, if the trial judge has any doubts
on the subject, he may send the jury out, under proper
instructions, to correct the informal or insufficient verdict.”’”
(Behr, supra, 193 Cal.App.4th at pp. 529–530.) “If the verdict is
merely ambiguous, a party’s failure to request a correction or
clarification of the verdict before the jury is discharged may
amount to a waiver of the ambiguity or defect, particularly if the
party’s failure to object was to reap a ‘technical advantage’ or to
engage in a ‘“litigious strategy.”’” (Zagami, Inc. v. James A.
Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092, fn. 5 (Zagami).)
The lack of allocation of damages among the defendants
here merely presents ambiguity in the jury’s findings, not fatal
inconsistency. While the specific amount of damages that should
be assigned to each defendant is unclear, the findings do not
contain any irreconcilable contradictions. Indeed, the finding of
damages can reasonably be interpreted to mean the defendants
are jointly liable for the same amount. Any lack of clarity on this
matter needed to be addressed in the underlying proceedings
before the jury was discharged. This, appellants failed to do. As
discussed above, mere ambiguity may be waived and any

12
inconsistency being challenged must be fatal. (See Behr, supra,
193 Cal.App.4th at p. 530; Zagami, supra, 160 Cal.App.4th at
p. 1092, fn. 5.) Accordingly, appellants waived their arguments on
this issue because they merely establish an ambiguity, not an
irreconcilable contradiction, in the verdict.12
D. Appellants failed to object to the jury
instructions
Appellants posit the jury instructions were incomplete and
prejudicial because they failed to include instructions defining
“severe or pervasive” conduct. However, “‘a jury instruction which
is incomplete or too general must be accompanied by an objection
or qualifying instruction to avoid the doctrine of waiver.’” (Carrau
v. Marvin Lumber & Cedar Co. (2001) 93 Cal.App.4th 281, 297.)
A failure to object to jury instructions will only not be deemed a
waiver “where the instruction is prejudicially erroneous as given,
that is, which is an incorrect statement of the law.” (Id. at p. 296.)
Here, appellants do not claim there were any erroneous
statements of the law in the jury instructions. Instead appellants
maintain the jury instructions were incomplete because they had
no definition of “severe or pervasive” conduct. Accordingly, we
conclude appellants waived their arguments on this issue
concerning the jury instructions.
In short, appellants fail to show how the alleged defects in
the special verdict form and the jury instructions constitute
reversible error. The elements appellants claim are missing in

12 Appellants also contend the judgment improperly imposes
joint and several liability among the defendants. The record does
not show appellants ever objected to the judgment on this issue
in the trial court. Thus, appellants waived this issue here. (See
Keener, supra, 46 Cal.4th at p. 264.)

13
the special verdict form for the FEHA claim are reflected entirely
in the findings of fact described in the form. Appellants waived
arguments as to the finding of damages in the special verdict
form because they failed to raise the issue and the damages
award is not fatally inconsistent. Moreover, appellants waived
arguments as to the jury instructions because they failed to
object and do not show any erroneous statements of law in the
instructions.
II. Appellants waived their arguments as to
respondent’s failure to exhaust administrative
remedies
A. Standard of review and applicable law
“‘We apply a de novo standard of review to the legal
question of whether the doctrine of exhaustion of administrative
remedies applies in a given case.’” (Monterey Coastkeeper v.
Monterey County Water Resources Agency (2017) 18 Cal.App.5th
1, 12.) Further, “[q]uestions of subject matter jurisdiction are
questions of law, which are reviewed de novo.” (Tearlach
Resources Limited v. Western States Internat., Inc. (2013) 219
Cal.App.4th 773, 780.)
“‘The exhaustion of administrative remedies doctrine “bars
the pursuit of a judicial remedy by a person to whom
administrative action was available for the purpose of enforcing
the right he seeks to assert in court, but who has failed to
commence such action and is attempting to obtain judicial
redress where no administrative proceeding has occurred at all.”’”
(McCann v. City of San Diego (2021) 70 Cal.App.5th 51, 76.)

14
B. Respondent’s failure to exhaust administrative
remedies did not divest the trial court of subject
matter jurisdiction
Appellants argue the judgment against Los Bagres should
be reversed because respondent failed to exhaust her
administrative remedies as she did not name Los Bagres in her
DFEH complaint. Appellants maintain they did not waive this
issue because the failure to exhaust administrative remedies
invalidated the trial court’s subject matter jurisdiction over Los
Bagres. We disagree.
“Before filing a civil action alleging FEHA violations, an
employee must exhaust his or her administrative remedies with
DFEH.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143,
153.) “Exhaustion includes the timely filing of administrative
complaints addressing the claims and parties at issue, as well as
the procurement of right-to-sue letters. [Citation.] Courts have
referred to this requirement as a ‘“jurisdictional prerequisite.”’”
(Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th
1336, 1345 (Kim).)
While the abovementioned rules are well established, “less
clear is what should happen if the issue of exhaustion of
administrative remedies is basically ignored until after FEHA
claims have been submitted to the fact finder for decision.” (Kim,
supra, 226 Cal.App.4th at p. 1346.) “The courts are currently split
over whether a trial court categorically lacks subject matter
jurisdiction where the statutory prerequisite that goes unmet is
the requirement of exhaustion of claims or the presentation of
claims to a public agency.” (Drink Tank Ventures LLC v. Real
Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5th 528, 542, fn. 5.)

15
In State of California v. Superior Court (2004) 32 Cal.4th
1234, 1239, footnote 7, our Supreme Court noted that
“noncompliance [with claims presentation requirements] does not
divest the trial court of subject matter jurisdiction over causes of
action against public entities.” “In several other contexts,
California appellate courts have expressly recognized . . . ‘[t]he
exhaustion doctrine does not implicate subject matter jurisdiction
but rather is a “procedural prerequisite” “originally devised for
convenience and efficiency” . . . [.] [Citation.] It is “jurisdictional”
only in the sense that a court’s failure to apply the rule in a
situation where the issue has been properly raised can be
corrected by the issuance of a writ of prohibition.’” (Keiffer v.
Bechtel Corp. (1998) 65 Cal.App.4th 893, 897–898.)
“‘[J]urisdictional prerequisite’ does not mean subject matter
jurisdiction in the context of exhaustion of administrative
remedies.” (Kim, supra, 226 Cal.App.4th at p. 1347.) “‘The
concept of jurisdiction embraces a large number of ideas of
similar character, some fundamental to the nature of any judicial
system, some derived from the requirement of due process, some
determined by the constitutional or statutory structure of a
particular court, and some based upon mere procedural rules
originally devised for convenience and efficiency, and by
precedent made mandatory and jurisdictional.’” (Mokler v.
County of Orange (2007) 157 Cal.App.4th 121, 134, disapproved
of on other grounds in Lawson v. PPG Architectural Finishes, Inc.
(2022) 12 Cal.5th 703, 717–718.) “‘Although earlier cases tended
to view the exhaustion doctrine as invalidating a court’s subject
matter jurisdiction, thus allowing a defendant to raise it at any
time [citations], later cases have generally . . . conclude[d] a

16
defendant waives the defense by failing to timely assert it.’” (Kim,
supra, at p. 1347.)
“If a defendant timely presents the issue of whether a
FEHA plaintiff has properly presented all claims to the DFEH, a
court must decide the merits of this question. [Citation.] But ‘“it
would be grossly unfair to allow a defendant to ignore this
potential procedural defense at a time when facts and memories
were fresh and put a plaintiff to the time and expense of a full
trial, knowing it could assert the failure to exhaust
administrative remedies if it received an adverse [judgment].”’”
(Kim, supra, 226 Cal.App.4th at p. 1347.)
We conclude the exhaustion of administrative remedies
does not affect the fundamental subject matter jurisdiction of the
trial court. We agree with the line of cases holding the exhaustion
doctrine is a procedural requirement that was originally
implemented for convenience and efficiency. While cases have
described the exhaustion doctrine as “jurisdictional,” it is only
jurisdictional in the sense that a court’s failure to apply it can be
rectified through an issuance of a writ. The term “jurisdictional
prerequisite” in this context does not refer to a court’s
fundamental authority over a matter, such as its subject matter
jurisdiction. Cases holding otherwise have not persuasively
demonstrated why a procedural requirement formed for
convenience and efficiency should implicate a court’s
fundamental jurisdiction. A rule allowing a defendant to unfairly
disregard the procedural defense and subsequently raise it for
the first time on appeal would entirely contravene the rule’s
original purpose of convenience and efficiency.
Appellants do not dispute they entirely failed to raise this
issue before the trial court despite ample opportunity to do so.

17
Appellants have not persuasively demonstrated why they should
be allowed to assert this matter for the first time here.
Accordingly, we conclude appellants waived their arguments
concerning respondent’s failure to exhaust her administrative
remedies.

DISPOSITION
The June 14, 2023 judgment is affirmed. Respondent is
awarded her costs on appeal.

CHAVEZ, J.
We concur:

LUI, P. J.

SIGGINS, J.*

• Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

18