Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 505489
Siggins, J.
Terry Huey appeals the denial of his petition for writ of mandate under Code of Civil Procedure section 1085, which he filed to establish that his resignation from the San Francisco Police Department (the Department) was ineffective. He asserts that he orally rescinded his resignation and that the Department abused its discretion because it required that Huey’s rescission be in writing. We disagree. The trial court determined as matters of fact that: (1) Huey did not orally rescind his resignation; and (2) the written attempt to rescind was untimely and, therefore, without effect. We conclude these factual findings are supported by substantial evidence and dispose of Huey’s claims. Accordingly, we affirm.
BACKGROUND
The following background is set forth to provide context for our analysis under the substantial evidence standard of review we apply to a trial court’s ruling on a petition for a traditional writ of mandamus. (Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 53.)
In the winter and spring of 2005, Huey faced charges brought by the Office of Citizen Complaints (OCC) before the San Francisco Police Commission (the Commission). He was already on probation for an unrelated incident. On April 26, 2005, while Huey was facing continued cross-examination in his hearing, his attorney advised him that the proceedings would likely result in his termination. Attorney Lidia Stiglich counseled Huey to consider resignation with a “services unsatisfactory” designation, rather than proceeding with the hearing and the likely termination.
Huey accepted Stiglich’s recommendation and arranged to meet with Captain Mario Gonzalez of the Department’s personnel office at 10:30 the next morning. That morning, before the meeting, Huey turned in his gun and typed and signed a letter of resignation. At the personnel office he signed the Department’s separation report form, which stated “I hereby freely and voluntarily resign from the above position. I request approval of this resignation as of the effective date with the full understanding that, once approved, I may acquire another position in this class only as provided by the Rules of the Civil Service Commission.” The effective date on the separation report was “C.O.B. 04-27-05.” According to Gonzalez, Officer Huey did not express any uncertainty about his decision to resign and said he felt as if a great weight had been lifted from his shoulders because he was allowed to resign rather than continue with the Commission hearing.
Captain Gonzalez understood that no further departmental action was required to make the resignation effective, and he did not believe that Officer Huey could rescind his resignation. Gonzalez suggested that Huey notify his commanding officer, Captain Keith Sanford that he had resigned. Gonzalez’s suggestion was not an order, and Huey was not required to get Captain Sanford’s approval. The Department handles resignations through the staff services/personnel office, not through individual supervisors.
Huey typed up a resignation memorandum that stated he decided to resign based on family and child care issues and he delivered it to Captain Sanford. Sanford read the memo and asked Huey “[w]hat’s really going on?” Huey told Sanford that he was facing a Commission hearing and that his attorney pressured him to resign rather than face a serious misconduct finding that she was certain would result in termination. Huey said the charges were false, but that he was afraid that a Commission finding on his record would prevent him from finding other law enforcement work.
Sanford encouraged Huey to reconsider his decision to resign and to fight the charges pending before the Commission. At some point during his conversation with Sanford, Huey said that he wanted to rescind his resignation. Captain Sanford did not know whether the Department would allow Huey to rescind. Sanford told Huey he would contact Captain Gonzalez to find out whether he could, but, in any case, rescission would need to be in writing and submitted to personnel. Huey understood Sanford to be giving him an “order under Department protocols” and that a failure to comply would signal that “I’m not serious about my desire to rescind.” Sanford also told Huey that, given attorney Stiglich’s role in securing the Department’s agreement to his resignation, Huey needed to get her cooperation in his effort to rescind it.
In a phone conversation around 2:00 that afternoon Sanford told Gonzalez that he believed Huey wanted to rescind his resignation and was probably going to submit a written request to do so. Sanford asked Gonzalez whether the Department would permit Huey to rescind. Gonzalez said he was not aware of any procedure for rescinding a resignation after the officer had submitted a resignation to personnel and surrendered his badge and Department ID. Huey had already done these things and Gonzalez told Sanford there was no further action required to effect the resignation.
Huey spoke on the phone with Stiglich from Sanford’s office. Stiglich disagreed with Huey’s change of heart and warned Huey that she thought he was going to be terminated and was getting bad advice from Captain Sanford. Sometime later Stiglich told Captain Charles Keohane in the Department’s risk management office that she had spoken with Huey after his meeting with Sanford and that Huey had reconfirmed his decision to resign. Stiglich told Keohane that Huey’s earlier wavering was due to bad advice he got from “stationhouse lawyers,” and Keohane should disregard any contrary information he may hear from other members of the Department. Keohane had already spoken with Gonzalez, who told him about Captain Sanford’s call. Keohane knew the OCC hearings were cancelled due to Huey’s resignation and that allowing him to rescind would have created a number of legal and procedural issues. Keohane told Stiglich he would allow Officer Huey the rest of the afternoon to contact Gonzalez regarding his intentions, and that if he did not do so his resignation would be accepted and irrevocable as of the 5:00 p.m. close of business.
Shortly after 5:00 Gonzalez signed and sent Huey a formal “Notice of Intent to Certify Resignation—Services Unsatisfactory,” confirming Huey’s voluntary resignation from the Department.
Between 5:15 and 5:30 p.m. Huey submitted a written memorandum to Sanford asking to rescind his resignation. Sanford stamped and signed the memo and faxed it to the personnel office at approximately 5:25 p.m., but by then the office had closed for the day and Huey’s resignation had been processed.
The next morning Gonzalez first learned that Huey prepared a memorandum seeking to rescind his resignation. Around 9:30 a.m. Stiglich called Captain Keohane to confirm that Huey’s resignation had gone through and that the OCC hearings would not need to be rescheduled. Keohane assured her that the resignation was effective and irrevocable. Stiglich reiterated that Huey had told her to process his resignation the previous afternoon, and that he did not tell her of his intention to rescind it until approximately 5:40 that evening.
Officer Huey then filed his petition for writ of mandate seeking, inter alia, a judicial declaration that his resignation was not effective. After a hearing the court denied the petition. The court found that Huey did not submit a written rescission by “close of business” as stated on the resignation form, which meant 5:00 p.m. Accordingly, by its own terms Huey’s resignation took effect at 5:00 p.m. The Department had finalized its acceptance of the resignation when Gonzalez signed the formal notice confirming acceptance and sent it to Huey. The court said, “That action closed the door on any subsequent attempt to rescind, and it was certainly within the Department’s discretion to do so.”
The court also found that neither Huey’s discussion with Sanford nor Sanford’s subsequent conversation with Gonzalez rescinded Huey’s resignation. First, the Department was reasonable to require a rescission of a written resignation to also be in writing, and that requirement is within the Department’s discretion. Second, even assuming arguendo that there could be an oral rescission, both Huey and Sanford contemplated that Huey would submit a written memorandum to make it effective. Third, even if Sanford intended to orally rescind Huey’s resignation, Stiglich’s later instructions that Huey wanted the Department to process his resignation would control.
The court concluded: “Far from acting in a capricious manner, the Department respected Huey’s right to come forward with a final decision as to whether he wanted to follow through on his discussion with Captain Sanford by submitting a written rescission. The Department held off finally processing Huey’s resignation until the close of business, even after his attorney had insisted that the resignation be deemed effective immediately. Huey has failed to persuade the Court that he submitted a written rescission at any time prior to 5:15 p.m., after his resignation became effective and irrevocable.” This appeal timely followed.
DISCUSSION
Legal Standards
Both parties agree, at least implicitly, that Huey filed a traditional petition for mandamus under Code of Civil Procedure section 1085. “A traditional writ of mandate under Code of Civil Procedure section 1085 is a method for compelling a city to perform a legal, usually ministerial duty. [Citation.] When a court reviews an administrative decision pursuant to Code of Civil Procedure section 1085, it merely asks whether the agency’s action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires. [Citation.] In reviewing a trial court’s judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial court’s factual findings. However, we exercise our independent judgment on legal issues, such as the interpretation of statutory retirement provisions.” (Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 52-53.)
Analysis
“[U]nless valid enactments provide otherwise, an employee is entitled to withdraw a resignation if she or he does so (1) before its effective date, (2) before it has been accepted, and (3) before the appointing power acts in reliance on the resignation.” (Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 206.) Huey contends the court made a “fundamental factual error” when it rejected his characterization of his statement to Captain Sanford, and Captain Sanford’s subsequent call to Gonzalez, as a timely and effective oral notice of rescission. Although he acknowledges that the question on appeal is whether the trial court’s factual determination that he did not orally rescind is supported by substantial evidence, he maintains the court’s erroneous conclusion turns on a finding that Sanford was in doubt about Huey’s intentions and such finding is unsupported by the record. Huey maintains the evidence points to only one conclusion: that Huey orally rescinded his resignation when he met with Sanford and “Sanford, after convincing Huey to change his mind about resigning, was eager for Huey to make a written record of Sanford’s contact with Gonzalez.”
He apparently no longer contends, as he did below, that his written resignation was timely.
We cannot agree when we review the trial court’s decision under the substantial evidence standard. “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
The record contains evidence to support the trial court’s finding that Huey did not orally rescind his resignation. True enough, after Sanford questioned Stiglich’s advice and urged Huey to fight the OCC charges, Huey told Sanford he had changed his mind and wished to rescind his resignation. But it was reasonable for the trial court to find, based on the larger context of the conversation between Sanford and Huey, that both men understood Huey’s statements alone would not effect a rescission. At the time, Sanford specifically told Huey that he did not know whether the Department would permit him to rescind, and that in any case his rescission would need to be in writing and submitted to personnel. Huey also testified he understood at that point that if he wanted to rescind he would have to do so in writing. There is also evidence that Huey knew he would have to obtain Stiglich’s cooperation to withdraw his resignation because of her efforts to have the OCC charges withdrawn in exchange for his resignation. Sanford’s subsequent conversation with Gonzalez provides further evidence that Sanford understood that (1) no rescission had as yet been effected; (2) whether Huey would be permitted to rescind was an open question; and (3) any rescission would have to be in writing.
The question for us is not whether the evidence may arguably support different interpretations of these events, but whether substantial evidence supports the trial court’s interpretation. The above evidence amply supports the trial court’s finding that Huey did not orally rescind his resignation. Accordingly, we will not disturb that determination on appeal. Huey’s remaining contentions that he was entitled to rescind his resignation orally because no “valid enactments,” rules or procedures require a written rescission (see Armistead v. State Personnel Board, supra, 22 Cal.3d at p. 206), and the Department’s requirement of a written rescission was arbitrary are moot in light of our affirmance of the trial court’s finding that Huey did not orally rescind his resignation.
DISPOSITION
The order denying Huey’s writ petition is affirmed.
We concur: McGuiness, P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.