Opinion
E049282
2011-08-03
SHIRLEY RIVERA, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, Defendant and Appellant.
Reid & Hellyer and Andrew I. Roth for Plaintiff and Appellant. The Zappia Law Firm, Edward P. Zappia, Matthew Evans, and Brett M. Ehman for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIC494960)
OPINION
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.
Reid & Hellyer and Andrew I. Roth for Plaintiff and Appellant.
The Zappia Law Firm, Edward P. Zappia, Matthew Evans, and Brett M. Ehman for Defendant and Appellant.
I. INTRODUCTION
Plaintiff and appellant Shirley Rivera worked for defendant and respondent County of Riverside (County) as a senior animal control officer. The County terminated her employment in August 2005. Rivera appealed that decision pursuant to a collective bargaining agreement, and an arbitrator directed the County to reinstate her. Instead of doing so, the County purported to terminate her again, this time for allegedly testifying falsely at the arbitration hearing. But Rivera did not receive notice of the termination in time to appeal. Rivera filed a petition for a writ of mandate in the superior court seeking to compel the County to reinstate her or provide her with an administrative hearing concerning the second termination. The trial court found that the County's effort to give Rivera notice of the second termination did not satisfy the constitutional requirement of due process and ordered the County to provide Rivera with an administrative hearing. The County and Rivera appealed.
The County contends its service of the notice of termination satisfied due process and that Rivera is barred from challenging the termination because she failed to timely appeal the decision. In addition to opposing the County's argument, Rivera argues that the court should have not only ordered the County to reinstate her, but should have prohibited the County from terminating her based on the false testimony claim.
We agree with the trial court that the County's attempt to notify Rivera of the termination of her employment failed to comport with due process. We reject Rivera's arguments on her appeal and affirm the judgment.
II. FACTUAL AND PROCEDURAL SUMMARY
In August 2005, Rivera was employed by the County as a senior animal control officer. She was a member of the Laborers' International Union of North America, which has a memorandum of understanding (MOU) with the County. The MOU provides for certain procedures concerning disciplinary action toward union member employees. Prior to taking a disciplinary action, the County must serve two notices on the employee: First, a notice of intent to take disciplinary action (e.g., a notice of proposed termination), which provides the employee with an opportunity to respond to that notice; and second, a notice that the action shall be taken (e.g., notice of termination). The employee can appeal the decision within 10 working days after service of the final notice of disciplinary action. If an employee fails to timely appeal, the right to review is waived.
The MOU provides that notices of disciplinary action "shall be in writing and shall be deemed served when personally delivered to the person to whom it is directed or when deposited in the United States mail, registered or certified postage prepaid and addressed to the designated recipient at the last known address."
Under the MOU, an appeal of the County's decision to discharge an employee is heard and decided by an arbitrator. The arbitrator has the power to rescind the discharge and order reinstatement of the employee with back pay and benefits. "The decision of the arbitrator shall be final subject to the right of either party to seek judicial review under Section 1094.5 of the California Code of Civil Procedure." A. The First Termination
In August 2005, the County sent Rivera a notice of proposed termination. The decision was based in part on allegations that Rivera had been drinking alcohol while on duty and was intoxicated when she was driving other employees in a County van during their return from an out-of-town conference. The notice was sent to Rivera at an address on Tamara Drive in Moreno Valley. On August 22, 2005, the County served the second notice—a notice of termination.
Rivera appealed the termination decision. An arbitration hearing was held in June 2006, March 2007, and April 2007. Rivera was represented at the hearing by attorney Diane Roth. The County was represented by Tom Prescott, a human resources division manager for the County. At the hearing, Rivera denied the allegations she had consumed alcohol at the relevant times. Her testimony was corroborated by other witnesses. The County's case was based on one witness, Nicholas Irish, who testified that Rivera and the others had been drinking and were inebriated when Rivera drove them home in a County van.
The arbitrator found that Irish was not credible and concluded that the County had not terminated Rivera for good cause. The arbitrator ordered that Rivera "be reinstated and that she be made whole." His opinion is dated May 18, 2007. The arbitrator stated he would "retain jurisdiction over the remedy until June 29, 2007." The County did not seek judicial review or otherwise challenge the arbitrator's award. Nor did it reinstate Rivera to her position. B. The Second Termination
On July 19, 2007, two months after the arbitrator's decision, the County mailed a new notice of proposed termination. This notice was based upon the following factual allegations: "During the disciplinary appeal you stated, under oath, that you had not consumed any alcohol while attending a business related seminar on February 20, 2005. On or about June 19, 2007, after the hearing had concluded and a decision was rendered, additional information was disclosed to Director of Animal Services Rob Miller that you had perjured yourself during the hearing. In a phone conversation sometime in February 2006, while discussing the hearing, you made a comment to Tammera Belmonte, Supervisor Animal Control that they were trying to say you had 5 to 8 drinks that day, but that you only had one drink. This admission [is] contrary to your sworn evidence and is perjury." The notice concluded by stating that Rivera had the right to respond to the letter by August 2, 2007, and that any response should be directed to Roger Uminski.
Although we are primarily concerned with the service of the subsequent notice of termination, certain facts regarding this notice of proposed termination are relevant to our analysis.
The notice of proposed termination was sent to Rivera at the Tamara Drive address. According to Prescott, this is the address they had for Rivera "on file" with the County. The notice was sent by certified mail, return receipt requested.
Rivera never received the notice. A return receipt for the notice was signed with what appears to be the name Charlene Gonzalez. A copy of the notice was not sent to Roth (Rivera's attorney).
The day after the County sent the notice of proposed termination, Roth received an e-mail from Prescott stating that "the department will be proposing that [Rivera's] employment be terminated. If Ms. Rivera currently has another position she should not make any plans to leave because I expect that she will shortly receive a notice of proposed termination from the department." Roth stated in a declaration that she received a copy of the notice of proposed termination "[s]oon after" she received the e-mail.
Roth does not say how or from whom she received the notice.
On August 2, 2007, Roth responded to the notice in a letter sent by fax to Roger Uminski. Roth began by stating, "[t]his office represents Shirley Rivera." In the letter, Roth states that Rivera denies the facts asserted in the notice. She also asserted that the "County is now attempting to get a second bite of the apple, claiming that Ms. Rivera made a statement to Ms. Belmonte four months before the hearing began which contradicts Ms. Rivera's hearing testimony. Furthermore, although the County claims that it received this information on June 19, 2007, the County waited until after June 29 -when the arbitrator lost jurisdiction - to take any action on this new information." Roth concluded: "Please be on notice that if the County now attempts to terminate [Rivera], we will file an action in court for violation of Ms. Rivera's constitutional rights, demanding reinstatement, back pay, damages and attorneys' fees and costs. [¶] Please be further advised that Ms. Rivera does not waive her right to a full arbitration hearing should you decide to uphold the department's recommendation of termination."
For approximately four months between August and December 2007, Prescott and Roth exchanged numerous letters and e-mail correspondence concerning the possibility of settling the disputes between the parties. During this time, the County did not communicate directly with Rivera; all communication was with Roth. When settlement discussions failed to resolve the disputes, Prescott informed Roth by e-mail on December 12, 2007, that the "County will proceed with its administrative action so Ms[.] Rivera should not be expecting to be reinstated." There does not appear to be any further communication between Roth and the County until February 4, 2008.
In the meantime, on December 22, 2007, the County sent the second notice required by the MOU, a letter titled "Notice of Termination," to the Tamara Drive address by certified mail, return receipt requested. Although the notice indicates that at least seven individuals (all apparently County personnel) received "cc" copies of the letter, it does not indicate that a copy was sent to Roth. Rivera and Roth each declared they did not receive the notice or a copy of it. There is no evidence in the record that a return receipt for the December 2007 notice was signed by anyone or returned to the County.
On February 4, 2008, a human resource analyst for the County e-mailed Roth with a question regarding the calculation of back pay due Rivera. On February 16, 2008, Roth responded to the question and added: "Ms. Rivera is supposed to be on the payroll. Please reinstate her to the payroll and begin paying her her regular wages forthwith."
Prescott responded by e-mail to Roth stating that Rivera "was sent her final notice of termination more than a month ago (after she rejected our settlement proposal) and the time to appeal the termination has long since passed so there will be no reinstatement to the payroll."
Roth e-mailed Prescott, informing him that neither she nor Rivera received a final termination notice. According to Roth, Rivera "moved about six months ago . . . ." Roth pointed out that she had advised the County that she represented Rivera and was not waiving Rivera's right to appeal her termination. Roth again demanded Rivera's reinstatement.
Prescott informed Roth that the notice of termination was mailed "by First Class mail, at her last known mailing address," and that the letter was never returned. He stated that the mailing was effective service on Rivera because it complied with section 684.120 of the Code of Civil Procedure.
Code of Civil Procedure section 684.120 governs service by mail of writs, notices, orders, and other papers under the enforcement of judgments law. In this appeal, the County does not assert that this statute has any bearing on the effectiveness of the service.
Roth responded by referring Prescott to her August 2, 2007, letter to Roger Uminski and informing Prescott that Rivera would be filing a petition for a writ of mandate.
In April 2008, the County paid Rivera $18,427.94 in back pay for the period from August 22, 2005, through December 21, 2007. C. Petition for Writ of Mandate
Rivera filed a petition for peremptory writ of mandate and prohibition under Code of Civil Procedure section 1085 in March 2008. She sought a writ of mandate compelling the County to comply with the arbitrator's May 2007 award and reinstate her to her position with full back pay and other benefits. Rivera also requested a peremptory writ of prohibition prohibiting the County from terminating her employment on the basis that she testified falsely in the arbitration hearing. The County opposed the petition.
At a hearing held in April 2009, the court indicated it was "not inclined to grant" either of the requested writs. However, the court also indicated it did not agree with the County's argument that Rivera could not challenge the "second termination" because she failed to file a timely appeal. The court proposed a remedy that would allow Rivera to pursue an appeal of the second termination. The court expressed doubt, however, as to whether such an order was within the purview of Rivera's petition. Rivera then requested leave to amend and the court, after providing the County with notice and an opportunity to oppose the request, granted the motion.
The amended petition repeated the request for a writ of mandate compelling the County to reinstate her to her position. It omitted the request for a writ of prohibition prohibiting the County from terminating her on the basis she testified falsely at the first hearing. In its place, Rivera requested, as an alternative to the reinstatement, a writ of mandate compelling the County to provide her with an administrative hearing on the second termination.
At a hearing on the amended petition in July 2009, the court indicated it would order the County to provide Rivera with an administrative hearing regarding the second termination and award back pay up to the time of the decision in that hearing. The following then transpired between the court and counsel for the County:
"[DEFENSE COUNSEL]: Your Honor, briefly. I'm assuming this relief is being granted on equitable grounds, because I can't find any legal authority that requires the County to notify counsel of record of the notice of termination.
"In fact, it's quite the opposite. It says
"THE COURT: Hang on. The equitable grounds of what? I just described how this process was not fair and was not due process. If we are going to get technical and legalistic about it, and there's no reason why we shouldn't from time to time, you never abided by the first arbitrator's decision. And if we are going to get technical and legalistic, my ruling would be this: You never abided by that decision. You were ordered to reinstate her forthwith. Period. End of story.
"And you'll have to fire her a third time, because if we are going to get legalistic and start dotting the 'I's' and crossing the 'T's,' your second termination was totally ineffectual and without any legal meaning because you never reinstated her first. You can't fire someone who's already fired, which is what the County attempted to do.
"So, we can go one of two ways. We can go legalistic, in which case she's just reinstated. Period. End of story. Back-paid to today's date. Put her on the payroll, let's go to work. Or we can go the equitable way, as you put it, and say that your second termination, while legally deficient, was substantially appropriate provided you gave actual notice, which you didn't.
"So either way.
"[DEFENSE COUNSEL]: Okay. And I understand Your Honor's ruling. I would just add that pursuant to the MOUs—for the record, pursuant to the MOU, the County complied with it's [sic] obligations of notification of the notice to terminate. And in addition, counsel's notification to Mr. Prescott that it intended to appeal or to schedule an administrative hearing over the termination would be akin to counsel saying today: I intend to appeal this Court's ruling. And that's then not timely noticing an appeal. Obviously, in that case, the appeal wouldn't happen.
"And with that, I'll submit.
"THE COURT: Wish to be heard?
"[PLAINTIFF'S COUNSEL]: No, Your Honor.
"THE COURT: You want to go the way of ordering the second hearing? Or do you want to go the way of having a third termination?
"[DEFENSE COUNSEL]: I'll have to talk to the client about that.
"THE COURT: No. I don't have time because I have to make a ruling right now. My inclination is to go with the way of giving her a hearing.
"[DEFENSE COUNSEL]: Well
"THE COURT: But I'm going to state quite frankly if you are going to go up to the Court of Appeal, if you want to dot the 'I's' and cross all the 'T's,' an alternative grounds for this is simply to say: You never dotted the 'I's' and crossed the 'T's' of the first reinstatement order. You are in violation of that order. You've been in violation of that order for two years. And I can just order that order still in effect, or order that the second termination was legally void and we can go from there.
"[DEFENSE COUNSEL]: We'll go with the hearing.
"THE COURT: That's what I thought. And that's the order. County's obligated to provide a hearing. County's obligated to provide backpay up until the time of the decision of that hearing. . . ."
Following the hearing, the court made the following findings:
"1. The County failed to comply with the arbitrator's order, dated May 18, 2007, in petitioner's first termination, in that it failed and continues to fail to reinstate petitioner.
"2. The County did not contest or appeal the arbitrator's May 18, 2007, award.
"3. When the County gave petitioner notice of a second termination, it did so in a way that did not give her actual notice.
"4. The County knew that plaintiff had counsel; it was at all relevant times communicating with plaintiff solely through her counsel; and, petitioner's counsel had given the County written notice on behalf of petitioner that if it made the decision to terminate petitioner, she intended to request an administrative hearing.
"5. Despite these facts, the County did not give petitioner notice of her second termination.
"6. When the County did receive petitioner's request for a hearing it did not proceed to hearing, but claimed that petitioner's first request for a hearing was too early and her second request was too late.
"7. The County has paid petitioner salary and benefits through December 21, 2007; the County has not paid petitioner any salary or benefits since December 21, 2007.
"8. The County under color of law deprived petitioner of her right to an administrative hearing to contest her termination in violation of her right to due process under the Fifth and Fourteenth Amendments to the Constitution."
The court then issued a peremptory writ of mandate commanding the County to provide Rivera "with an administrative hearing regarding her termination of December 21, 2007, and to pay [Rivera] full back pay and benefits, including contributions to the Public Employees Retirement System, retroactive to December 21, 2007, plus interest in accordance with law, and to continue such payments of wages and benefits until a decision is issued in the administrative hearing regarding her second termination."
The County's argument on appeal is, in essence, that it served the December 21, 2007, notice of termination by mail to Rivera's address in accordance with the MOU and, because Rivera failed to file a notice of appeal of the termination within the time required by the MOU, she is barred from challenging the termination.
In response, Rivera contends the County is estopped from appealing the court's ruling because it consented to it below. Rivera further contends (among other arguments) that the court correctly found that the County's efforts to notify her of the termination of her employment failed to comply with constitutional requirements of due process.
In her appeal, Rivera argues that the court should have ordered the County to reinstate Rivera to her position and that the court should have prohibited the County from terminating her employment a second time, because the second termination was an impermissible collateral attack on the arbitrator's decision.
III. STANDARD OF REVIEW
"A traditional writ of mandate under Code of Civil Procedure section 1085 is used to compel a public entity to perform a legal and usually ministerial duty. [Citation.] The trial court reviews the challenged administrative action to determine whether it 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.] On appeal, the trial court's factual findings must be upheld if they are supported by substantial evidence. [Citation.] However, legal issues present a question of law that this court reviews de novo on appeal. [Citation.]" (Shelden v. Marin County Employees' Retirement Assn. (2010) 189 Cal.App.4th 458, 463; see also Riverside Sheriffs' Assn. v. County of Riverside (2009) 173 Cal.App.4th 1410, 1418 [Fourth Dist., Div. Two].) To the extent the trial court's decision regarding the constitutionality of defendant's actions does not turn on disputed facts, we review that decision de novo. (Committee for Responsible School Expansion v. Hermosa Beach City School Dist. (2006) 142 Cal.App.4th 1178, 1184; Townsel v. San Diego Metropolitan Transit Development Bd. (1998) 65 Cal.App.4th 940, 946.)
IV. ANALYSIS
A. Appealability
We first address Rivera's arguments that the County is estopped from appealing the trial court's order because it was a "consent judgment" and the County invited the alleged error. We reject the arguments.
Rivera relies primarily on Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 (Norgart). In Norgart, the defendant filed a motion for summary judgment on the basis that the plaintiffs' action was barred by a statute of limitations. (Id. at p. 393.) Prior to a ruling by the trial court on the motion, the parties entered into an agreement and stipulation to have judgment entered in the defendant's favor based on the statute of limitations "in order . . . to hasten review in the Court of Appeal." (Id. at pp. 393-394.) After the trial court entered judgment in accordance with the stipulation, the plaintiffs appealed. (Id. at p. 394.) After the Court of Appeal reversed, our state Supreme Court considered whether the judgment was nonappealable under the rule that a party may not appeal a consent judgment. (Id. at pp. 399-400.)
A consent judgment, the Norgart court explained, is a judgment that is entered under the authority of, and in accordance with, the contractual agreement of the parties who intend to settle their dispute fully and finally. (Norgart, supra, 21 Cal.4th at p. 400.) Norgart also reaffirmed an exception to this rule that applies when consent to judgment "'was merely given to facilitate an appeal following adverse determination of a critical issue . . . .'" (Ibid., quoting Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 817.) The rationale underlying both the rule and the exception, the court explained, is that the parties intend "either to settle their dispute fully and finally or merely to hasten its transfer from the trial court to the appellate court." (Norgart, supra, at p. 401.) Applying these principles and their rationale to the case before it, the court held that the consent judgment was appealable.(Ibid.)
The Norgart court also considered whether the plaintiffs' appeal was barred by the doctrine of invited error. (Norgart, supra, 21 Cal.4th at pp. 402-403.) This doctrine, the court explained, is an application of the estoppel principle: "'Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal' on appeal. [Citation.]" (Id. at p. 403.) Because the purpose of the doctrine "is to prevent a party from misleading the trial court and then profiting therefrom in the appellate court," it "has not been extended to situations wherein a party may be deemed to have induced the commission of error, but did not in fact mislead the trial court in any way . . . ."(Ibid.)The court held that even if the agreement to have judgment entered induced the commission of error, the court held that the plaintiffs "simply did not mislead the superior court in any way" because "[i]t was apparent to all that [they] entered into the stipulation . . . in order to complain thereof before the Court of Appeal." (Ibid., italics omitted.)
Neither the consent judgment principle nor the invited error doctrine apply here. There is nothing in the record to indicate that the court's judgment is the result of any agreement between the parties to settle their disputes. Therefore, the consent judgment principle does not apply. (Norgart, supra, 21 Cal.4th at p. 400.) Indeed, it is clear from the record that the County (through its attorney) strongly disagreed with the court's ruling. As we read the transcript of the hearing, it appears that the County's counsel was prepared to pursue its argument against the court's proposed ruling but was faced with the possibility that further argument would result in an even less desirable outcome. By assenting to an administrative hearing, counsel merely avoided a potentially worse result for his client.
Regarding the invited error doctrine, Rivera asserts that the County's attorney misled the court into believing that, if the County accepted the remedy of permitting a hearing on the second termination, it would not appeal the court's ruling. We reject this argument. The County's counsel's statement that the County would "go with the hearing," merely reflects the reasonable choice of accepting the better of the two undesirable rulings being considered by the court. It does not appear from a fair and complete reading of the transcript that the court was misled to believe the County was waiving its right to appeal. Accordingly, we reject Rivera's argument that the County is estopped from appealing from the judgment. B. Due Process and the Second Termination
The trial court found that the County deprived Rivera of "an administrative hearing to contest her termination in violation of her right to due process under the Fifth and Fourteenth Amendments to the Constitution." We agree.
The parties agree that Rivera's employment with the County was a constitutionally protected property interest that could not be terminated without due process. (See Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1112; Townsel v. San Diego Metropolitan Transit Development Bd., supra, 65 Cal.App.4th at p. 946.) The parties further agree that due process in this case requires, at a minimum, that Rivera be provided with notice of her termination and an opportunity to be heard regarding the grounds for termination. (See Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 313 (Mullane).)When notice is required, the Supreme Court has held, it must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (See id. at p. 314.) "[W]hen notice is a person's due," the court explained further, "process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." (Id. at p. 315.)
Rivera relies on, and the County distinguishes, the decision in California School Employees Assn. v. Livingston Union School Dist. (2007) 149 Cal.App.4th 391, 399 (Livingston). In that case, a school district sent to an employee, Mike Perez, a notice of the district's intent to terminate Perez's employment. (Id. at p. 394.) The notice was sent to Perez after the end of the school year when Perez was off work. (Ibid.)The notice set forth certain "charges" and informed Perez that, if he wanted to request a hearing on the charges, he must do so within five days after service of the notice. (Id. at p. 395.) The notice was attached to a copy of the district's personnel policy, which stated that notice of proposed disciplinary action is "'deemed sufficient when it is delivered in person to the employee or when it is deposited in the U.S. Certified Mail, postage prepaid and addressed to the last known address of the employee.'" (Ibid.) The district sent the notice to Perez by certified mail, return receipt requested, on June 24, 2004, to Perez's post office box. (Ibid.) Perez and his wife were out of town at the time. (Ibid.)When they returned, Perez's wife picked up the mail on July 8, 2004. (Ibid.) Perez delivered a demand for a hearing five days later. (Ibid.)The district informed Perez that he had waived his right to a hearing because Perez's response was delivered more than five days after the district sent its notice. (Ibid.)The district then terminated Perez's employment. (Id. at p. 396.) Perez's petition for a writ of mandate was denied by the superior court. (Ibid.)
The Court of Appeal reversed. The court applied the Mullane standard of "'notice "reasonably calculated, under all the circumstances, to apprise the interested parties of the pendency of the action and afford them an opportunity to present their objections." [Citation.]' [Citation.]" (Livingston, supra, 149 Cal.App.4th at p. 399.) "'All the circumstances,'" the court explained, "must include the fact that many, perhaps a majority, of [the district's] classified employees are not year-round employees. Thus, while [the district] has daily access to employees during most of the year, there will be extended periods during each year when [the district] knows it will not be able to deliver notices in person through normal work channels. Due process requires that [the district's] system of notice take this reality into account." (Ibid.) The court concluded that the district's policy of requiring a response to its notice within five days of mailing during summer breaks was administered "in such a manner that the notice became a mere formality and the opportunity to respond and request a hearing vanished altogether." (Id. at p. 400.)
The County argues that Livingston is distinguishable for several reasons. For example, the notice in Livingston allowed only five days after mailing to respond, while the County's notice allows 10 days; and, while the policy at issue in Livingston was created solely by that district, the County's requirement in this case was mutually agreed upon by the County and Rivera's labor union. The County also notes that the Livingston court expressly declined to "hold there can never be a valid rule establishing the date of 'service' of notice as the date of mailing," and that "'[t]he usual rule is that service by mail is effective upon depositing it in the mail. (Code Civ. Proc., § 1013.)'" (Livingston, supra, 149 Cal.App.4th at p. 398.)
The County's points regarding the factual differences in Livingston are valid. Nevertheless, the case is relevant and instructive for its emphasis on the need to analyze the adequacy of notice based upon the totality of the circumstances in each case. As the Mullane court indicated, in evaluating whether the notice given satisfies due process, we must give "due regard for the practicalities and peculiarities of the case . . . ." (Mullane, supra, 339 U.S. at pp. 314-315; see also Mathews v. Eldridge (1976) 424 U.S. 319, 334 ["'[D]ue process is flexible and calls for such procedural protections as the particular situation demands.'"].)
Here, the circumstances, practicalities, and peculiarities in this case include the following: Rivera was terminated by the County in August 2005. Although an arbitrator directed the County to reinstate her in May 2007, the County never did so. In July 2007, the County received the return receipt for its notice of proposed termination signed by Charlene Gonzalez, which reasonably suggests that Rivera might not live at the Tamara Drive address. Five months later, in December 2007, the County mailed the notice of termination that is the subject of this case to the same address. Significantly, throughout the relevant time period, the County was aware that Roth represented Rivera. Indeed, the County communicated with Rivera exclusively through Roth, including discussions regarding settlement of the parties' disputes. Finally, although the County sent the notice of termination by certified mail, return receipt requested, it has produced no return receipt or other evidence that anyone ever received the notice.
The question is whether, under these circumstances, "one desirous of actually informing" Rivera of her termination would merely send the notice of the termination by mail to the address on file without informing Roth of the termination or, at a minimum, contacting Roth to confirm Rivera's address. (See Mullane, supra, 339 U.S. at p. 315.) The answer, we conclude, is: No. Rivera had not worked for the County for more than two years, she was represented by counsel, the County communicated with Rivera exclusively through her attorney, and, because it did not receive a return receipt signed by Rivera for letters sent to the Tamara Drive address, the County had reason to suspect that Rivera no longer lived at that address. If the County actually desired to inform Rivera that it was terminating her employment (thereby triggering the deadline for appealing the decision), it would have taken other steps to ensure she received the notice, such as provide Roth with a copy of the notice of termination or inquire of Roth as to Rivera's current address. By failing to take these or other simple steps, the County's efforts failed to satisfy due process.
Even if the County reasonably believed at the time it mailed the notice of termination that it could apprise Rivera of her termination by mailing the notice only to the Tamara Drive address, it could not reasonably maintain that belief after it failed to receive the return receipt it requested. The purpose for requesting a return receipt is, of course, to provide proof that the letter was received. The absence of a return receipt in this situation indicates that Rivera never received the notice. A reasonable person desirous of actually informing Rivera of her termination who did not receive the requested return receipt would have, at a minimum, inquired of Roth about Rivera's whereabouts. Yet the County did nothing further.
The County's primary argument is that, by sending the notice of termination to the address it had on file for Rivera, it complied with the terms of the MOU and nothing more is required. However, even if we assume the County complied with the MOU, such compliance does not necessarily satisfy the requirements of due process in a particular case. (Cf. Livingston, supra, 149 Cal.App.4th at pp. 398-400 [notice that complied with school policy did not satisfy due process].) In a more typical employment termination scenario, the termination would likely involve a current employee with whom the County communicates directly. Such an employee would likely keep the employer apprised of a change of address. While the MOU's notice provisions might comport with due process in that scenario, it is the circumstances in this case against which due process must be measured. As explained above, under the unusual circumstances present here, merely mailing the notice to a stale, suspect address, is insufficient.
The County further argues that if the notice was not received by Rivera, it was because of her failure to provide the County with an updated address. The County does not refer us to any policy or regulation that required Rivera to inform it of a change in address. It states only that the address on file "is the address to which the County sends the employee her paychecks and other important documents." We reject this argument. Rivera, having been wrongfully excluded from employment with the County for more than two years, was not receiving any paychecks from the County. The County should not reasonably expect Rivera to keep it apprised of a change in her residence while the County unlawfully withholds all benefits of employment to Rivera. In addition, the County was informed of how it could contact Rivera—through Roth. Indeed, it accepted this manner of communication prior to and after the time it sent the notice of termination.
Arguably, the requirement in the MOU that the County send notices to the "last known address" implies a duty on the part of Rivera to inform the County of a change in her address. Even so construed, Rivera's failure to inform the County of her change of address does not, under the unusual circumstances in this case, excuse the County from failing to undertake any effort whatsoever to confirm her current address or to simply send a copy of the notice to Rivera's attorney. Even if the County decided it would not send a copy of the notice to Roth, the County could have easily asked Roth to confirm Rivera's address before sending the notice of termination to Rivera.
The County further argues that Roth never informed the County that she had the authority to accept service of the notice of termination. Although Roth did not volunteer that she would accept service of the notice, the County never asked her to do so. Asking Roth to accept service was certainly another simple, yet effective, action the County could have taken if it was "desirous of actually informing" Rivera of the action. That is not to say that the County was required to ask Roth to accept service; it was not. However, it was required to make some reasonably calculated effort to apprise Rivera of the termination of her employment. (Mullane, supra, 339 U.S. at p. 315.) Merely sending the notice to the Tamara Drive address, without more, did not satisfy this standard.
As evidence of its compliance with due process, the County points to its multistep procedure for ensuring that the notice is sent to the address on file. For example, a County employee must "fill out a Service of a Document form" on which the employee declares under penalty of perjury that the notice was deposited in the mail. The employee must also log the certified number on the form, note the date and time the notice was deposited in the mail, and the location of the deposit. These and other steps described by the County are all well and good. However, the issue in this case is not whether the County has proof it mailed the notice to the Tamara Drive address; the issue is whether, under the circumstances in this case, sending the notice to the Tamara Drive address was, without more, reasonably calculated to apprise Rivera that her employment was terminated. As explained above, it was not.
The County asserts the trial court made certain erroneous conclusions, including: (1) the County was required to give Rivera actual notice of the termination; (2) Roth's statement in her August 1, 2007, letter that Rivera does not waive her right to full arbitration was sufficient to constitute a timely appeal from the December notice of termination; and (3) the County was required to serve Roth with the notice of termination. As Rivera points out, the County's premises—that the court made these conclusions—is arguably a distortion or misconstruction of the court's ruling. For example, the court found that "[w]hen the County gave [Rivera] notice of a second termination, it did so in a way that did not give her actual notice." This does not necessarily mean, as the County asserts, that the County was required to give Rivera actual notice. Regardless of the County's interpretation of the court's ruling, our decision is made without regard to the court's findings on these disputed points. As stated above, we review the constitutionality of defendant's actions de novo when, as here, the facts are not disputed. Based on our independent review of the record, we come to the conclusion that the County's action did not satisfy the requirements of due process.
Finally, the County argues that Rivera waived her right to appeal the second termination by failing to file an appeal within the time required under the MOU or exhaust her administrative remedies. The argument assumes that she was provided with constitutionally adequate service of the notice of termination. Because she was not, these arguments fail. C. Rivera's Appeal
In Rivera's petition for writ of mandate, she sought to compel the County to reinstate her to her employment position. The court generally agreed with Rivera regarding reinstatement, stating "[t]here's no question [Rivera is] entitled to reinstatement on the first termination." Nevertheless, the court's peremptory writ does not expressly direct the County to reinstate Rivera. Although we also agree with Rivera's position, we find no error in the court's order.
There are two basic requirements essential to the issuance of a writ of mandate under Code of Civil Procedure section 1085: "'(1) A clear, present and usually ministerial duty upon the part of the respondent [citations]; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty [citation].'" (Loder v. Municipal Court (1976) 17 Cal.3d 859, 863.) Rivera asserts, and the County does not dispute, that these requirements are met here. The first requirement is met because a ministerial duty to reinstate Rivera arose when the arbitrator ordered the County to reinstate her to her position and the County failed to challenge that decision. (See Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788, 795.) The second requirement is met because Rivera indisputably has a clear, present, and beneficial right to reinstatement.
The County contends, however, that reinstatement was rendered moot by its second termination of Rivera, and an order for reinstatement would provide no practical benefit to her. (See, e.g., Slater v. City Council (1965) 238 Cal.App.2d 864, 868 ["A writ of mandate should not issue to enforce an abstract or moot right."]; Terry v. Civil Service Commission (1952) 108 Cal.App.2d 861, 872 [courts will not issue writ of mandate when it would be useless, unenforceable, or unavailing].)
The County's argument assumes that its second termination of Rivera was valid and effective. It was not. Under the MOU, the termination was not effective until Rivera was served with the notice of termination. As explained above, the County's effort to serve the notice of termination failed to comply with the requirements of due process and was therefore ineffective. Accordingly, we reject the County's arguments. Rivera's right to reinstatement was unaffected by the mailing of the second notice of termination.
It would seem to follow from the ineffectiveness of the second termination notice that the trial court erred in ordering an administrative hearing regarding the second termination. If, as the trial court correctly found, the attempted second termination failed to satisfy due process, then there was no valid second termination; if there was no valid second termination, Rivera should simply be reinstated as an employee pursuant to the arbitrator's decision; there is then no second termination for Rivera to appeal and no administration hearing that needs to be held. Of course, if the County still desires to terminate her employment, it may then serve Rivera with the requisite notices in accordance with the MOU and in a manner that complies with the Constitution. But until then, any order directing the parties to hold an administrative hearing is arguably premature.
The trial court recognized this when it referred to the possibility of making a "technical and legalistic" ruling "in which case [Rivera is] just reinstated. Period. End of story." The trial court, however, perceived that this would not end the story. It was apparent from the County's position at the hearing that it intended to terminate Rivera's employment even if it had to start over again and that Rivera would appeal a properly noticed termination, culminating in an administrative hearing or arbitration pursuant to the MOU. The "legalistic" ruling would thus provide for a mere transitory reinstatement and cause further delay and expense to both parties. To avoid these consequences, the court fashioned an alternative remedy (permitted by Rivera's amended pleading) that would skip the need for a new round of notices and formal appeal and get the parties before an arbitrator without undue time and expense.
We approve of the trial court's remedy. Mandamus is a proceeding governed by equitable principles. (Dare v. Bd. of Medical Examiners (1943) 21 Cal. 2d 790, 795; Allen v. Los Angeles County District Council of Carpenters (1959) 51 Cal.2d 805, 811812.) "An equity court has broad powers to fashion a remedy. [Citation.] It may create new remedies to deal with novel factual situations." (Oceanside Community Assn. v. Oceanside Land Co. (1983) 147 Cal.App.3d 166, 177; see also Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 390 [equitable relief is flexible and allows "new methods of relief for new types of wrongs."].) The court's remedy is squarely directed at curing the wrong committed by the County—depriving Rivera of a hearing on the second termination—while saving the parties the time and expense they would incur by the limited "legalistic" ruling. By providing Rivera with back pay and benefits until a decision is issued in the new administrative hearing, the court provides the substantial equivalent of reinstatement pending the outcome of the hearing. The remedy is well within the court's equitable power.
Finally, Rivera contends the court erred by failing to issue a writ of prohibition prohibiting the County from terminating her on the basis she testified falsely at the arbitration hearing. She argues that the second termination is an impermissible collateral attack on the arbitrator's May 2007 decision. The arbitration, she explains, decided the question of whether she had been drinking at the conference in San Diego. Because the new ground for termination is that she lied at the arbitration hearing about not drinking at the conference, the issue of whether she had been drinking will necessarily be litigated again. As such, she concludes, the second termination is barred by the doctrine of collateral estoppel and the policy favoring the finality of judgments. (See, e.g., Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 866; Buesa v. City of Los Angeles (2009) 177 Cal.App.4th 1537, 1544-1545, 1548.)
We do not reach the merits of Rivera's argument. Although Rivera originally requested a writ of prohibition prohibiting the County from asserting the new grounds for termination, she omitted this request in her amended petition for writ of mandate. The request for the writ of prohibition was thus abandoned when the amended petition was filed. (See, e.g., Merced Irrigation Dist. v. Woolstenhulme (1971) 4 Cal.3d 478, 505; County of Kern v. Galatas (1962) 200 Cal.App.2d 353, 356-357.) Accordingly, the issue was not properly before the trial court, was not addressed by the trial court, and is beyond the scope of our review.
V. DISPOSITION
The judgment is affirmed. Rivera is awarded her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Ramirez
P.J.
Miller
J.