                                                                            FILED
                             NOT FOR PUBLICATION                             DEC 28 2011

                                                                         MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT

JAMES A. MITCHEL,                                 Nos. 10-16570, 10-16694

                Plaintiff-Appellant/Cross-        D.C. No. 3:09-cv-05004 SI
             Appellee,

  v.                                              MEMORANDUM *

CITY OF SANTA ROSA,

                Defendant-Appellee/Cross-
              Appellant.


                      Appeals from the United States District Court
                         for the Northern District of California
                       Susan J. Illston, District Judge, Presiding

                        Argued and Submitted October 25, 2011
                              San Francisco, California

Before: GRABER and IKUTA, Circuit Judges, and QUIST,** Senior District
Judge.

       The district court’s dismissal of Claim 2 is affirmed. Claim 2 is waived because

James Mitchel voluntarily invoked arbitration under section 56 of the Santa Rosa City



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for Western Michigan, sitting by designation.
Charter without challenging any aspect of section 56. See Moncharsh v. Heily &

Blase, 832 P.2d 899, 917 (Cal. 1992). Even if Mitchel did not waive Claim 2, the

claim was properly dismissed because the arbitration costs imposed in his individual

case, which involved a cost-sharing provision between the employer and employee,

did not violate Mitchel’s right to due process. The Santa Rosa Personnel Rules

guaranteed Mitchel the right to a hearing before the Personnel Board, and any decision

would have been subject to judicial review. Instead, Mitchel opted for final and

binding arbitration under the terms of the Santa Rosa City Charter.

      As to Claim 13 in the First Amended Complaint (“FAC”), Mitchell alleges very

generally that the arbitration award should be vacated because of violations of

California Government Code section 1286.2. The specific grounds for vacatur are

alleged to be: unlawful tactics of Arbitrator Kelly; the arbitration panel exceeded its

powers by hearing the arbitration; Mitchel was substantially prejudiced by the refusal

of the arbitrators to see and hear material evidence and to permit discovery; the

arbitrators heard evidence that was substantially tainted; and Mitchel was substantially

prejudiced by the conduct of the arbitrators who reviewed typewritten evidence

without production of the underlying handwritten notes. Mitchel was given leave to

amend Claim 13 of the FAC “as to the allegations of misconduct by Arbitrator Kelly,”

but Mitchel failed to do so, instead omitting Claim 13 from the Second Amended

Complaint (“SAC”). The district court was thereafter correct in concluding that


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Mitchel’s failure to keep allegations regarding Arbitrator Kelly in the SAC resulted

in Mitchel abandoning his claims regarding alleged wrongdoing by Arbitrator Kelly.

See Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“It is the law of

this circuit that a plaintiff waives all claims alleged in a dismissed complaint which

are not realleged in an amended complaint.”). The district court erred, however, by

finding that Mitchel had abandoned his remaining grounds for vacatur, because the

district court had rejected these grounds “as a matter of law,” without leave to amend.

We therefore review the district court’s dismissal of these grounds.

      As for Mitchel’s argument that the arbitration panel improperly refused to

consider his claims that the City violated California’s Public Safety Officers

Procedural Bill of Rights Act (“POBOR”), Cal. Gov’t Code §§ 3300-3313, we find

that the district court erred by affirming the arbitration panel’s reasoning. Although

the California Superior Court has “initial jurisdiction” over POBOR claims, see Cal.

Gov’t Code § 3309.4(c), California courts have held that this grant of initial

jurisdiction “does not vest the courts with exclusive jurisdiction over an officer’s

[POBOR] claims.” Lozada v. City & Cnty. of San Francisco, 52 Cal. Rptr. 3d 209,

220 (Ct. App. 2006). We therefore remand this portion of Claim 13 for the district

court to consider whether the arbitration panel’s refusal to consider Mitchel’s POBOR

claims constituted a ground for vacatur of the award. See Cal. Civ. Code § 1286.2.

      As for Mitchel’s argument that the arbitration panel refused to allow him


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adequate discovery and permitted the City to present evidence of Ms. Warr’s

typewritten notes without producing the underlying handwritten notes, we find that

the district court erred by relying on the McClain Declaration submitted by the City.

Generally, at the motion to dismiss phase, the court is limited to reviewing the

contents of the complaint and any documents incorporated by reference. See, e.g.,

Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). We therefore remand this

portion of Claim 13 for the district court to determine whether the allegations in the

complaint, taken as true, show that the arbitration panel denied Mitchel discovery to

which he was entitled, and whether any such error constituted a ground for vacatur

of the award. See Cal. Civ. Code § 1286.2.

      The district court dismissed Claims 6, 7, 9, and 10 of the SAC (Mitchel’s

termination-related claims) on the ground that Mitchel conceded the validity of the

arbitration award by abandoning request for vacatur.          Because Mitchel did not

abandon his request for vacatur when he omitted from the SAC the portions of Claim

13 that the district court had already dismissed with prejudice, we hold that the district

court’s reasoning was incorrect. However, we affirm the district court’s dismissal of

Claims 6, 7, and 10 on alternate grounds.

             1) As to Claim 6, the district court is affirmed on the ground that Mitchel

      failed to show compliance with the California Fair Employment and Housing

      Act (“FEHA”) section 12965(e)(2). See Cal. Gov’t Code §§ 12900-12996.


                                               4
Under FEHA, a complainant must file a complaint with the California

Department of Fair Employment and Housing within one year of the unlawful

discrimination and receive a right-to-sue letter, see Cal. Gov’t Code §§ 12960,

12962, 12965, and any action must be brought within one year of receipt of the

letter, id. § 12965(e)(2). Here, Mitchel received a right-to-sue letter on June 7,

2008. However, Mitchel did not file his present action against the City until

September 30, 2009, more than a year later. The district court dismissed Claim

6 from the FAC with leave to amend in order for Mitchel to “include

allegations regarding the statute of limitations and/or equitable tolling.”

Because Mitchel did not include any such allegations in Claim 6 of the SAC,

we affirm the district court’s dismissal of this claim for failure to show

compliance with section 12965(e)(2).

       2) As to Claim 7, the district court is affirmed on the ground that Mitchel

failed to plead compliance with the California Tort Claims Act (“TCA”), Cal.

Gov’t Code §§ 910, 945.4. The claim submitted to the City focused almost

entirely on Mitchel’s challenge to the City Attorney’s dissemination of

Mitchel’s interview report. The claim did not provide the City with sufficient

notice of the termination-related claim to enable it to investigate the allegations.

See Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth., 99 P.3d

500, 502 (Cal. 2004).


                                         5
             3) As to Claim 10, the district court’s dismissal is affirmed because an

      administrative writ of mandamus cannot be used to challenge an arbitration

      award. Brosterhous v. State Bar of Cal., 906 P.2d 1242, 1255 (Cal. 1995).

      With respect to Claim 9 and the portions of Claim 13 that the district court

dismissed in error, we remand this case to the district court to: 1) determine whether

the federal district court should exercise its pendent jurisdiction over these claims or

should remand the claims to the state court, see Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 (1988); Jones v. Cmty. Redev. Agency, 733 F.2d 646, 651 (9th Cir.

1984) (usually dismissal of federal claims before trial dictates that the pendent state

claims should be dismissed); and 2) if the district court does retain jurisdiction over

the state claims, determine whether these claims can survive a motion to dismiss on

grounds other than abandonment.

      The dismissal of Claims 11 and 12 is affirmed for the reasons stated by the

district court. Claims 11 and 12 allege several violations of POBOR. Cal. Gov’t

Code §§ 3300-3313. Insofar as the claims pertain to receipt of the investigative report

and the Notice of Intent letter, the claims fail as a matter of law. The remaining

claims fail because Mitchel did not satisfy the requirements of the TCA. See Cal.

Gov’t Code §§ 910, 945.4. The claim that Mitchel sent to the City was not sufficient

to put the City on notice of the separate claim that Mitchel was not afforded sufficient

pre-termination hearing discovery. See Stockett, 99 P.3d at 502.


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      The district court’s sanctions award is vacated and remanded for

reconsideration. The district court awarded attorneys’ fees for defending against the

entire SAC, despite justifying the award almost entirely on a single frivolous claim.

That claim is only one out of thirteen, and it is a claim not even contained in the SAC.

Sanctions should be awarded only for the offending counts in a multi-count complaint.

Fed. R. Civ. P. 11 advisory committee notes 1993 amends., cmts. to subdivs. (b) and

(c), ¶ 9. If the district court improperly awarded sanctions for non-offending counts,

then it abused its discretion by making a mistake of law. Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 (1990). Thus, the district court should identify the particular

claims in the FAC and SAC that it found sanctionable and should ensure that its

sanctions award fits the sanctionable conduct that it identifies.

      The district court’s dismissal of Claims 2, 6, 7, 10, 11, 12, and part of 13 is

AFFIRMED.

      The district court’s dismissal of Claim 9 and part of Claim 13 is VACATED

and REMANDED.

      The district court’s sanction award is VACATED and REMANDED for

reconsideration. The parties shall bear their own costs on appeal.




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