Opinion
B228794
10-05-2011
CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS, Plaintiff and Appellant, v. CALIFORNIA STATE PERSONNEL BOARD, Defendant and Respondent; OLGA H. GARAU, Real Party in Interest and Respondent.
Vanessa L. Holton, Chief Counsel, Frank Nelson Adkins, Assistant Chief Counsel, Fred Lonsdale and Jay J. Lee, Counsel, for Plaintiff and Appellant. No appearance for Defendant and Respondent. Olga H. Garau, in pro. per., for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BS 120670)
APPEAL from an order of the Superior Court of Los Angeles County, Robert H. O'Brien, Judge. Reversed and remanded.
Vanessa L. Holton, Chief Counsel, Frank Nelson Adkins, Assistant Chief Counsel, Fred Lonsdale and Jay J. Lee, Counsel, for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
Olga H. Garau, in pro. per., for Real Party in Interest and Respondent.
The California Department of Industrial Relations (the Department) appeals from an order denying the Department's motion for judgment on its second petition for writ of administrative mandate. (Code Civ. Proc., §§ 1094, 1094.5.) The petition seeks to set aside the decision of the California State Personnel Board (the Board) reinstating respondent Olga H. Garau to her former position with the Department. In an earlier case, the trial court dismissed as unripe the Department's first petition and Garau's two cross-petitions. In our decision Garau v. California State Personnel Board (Oct. 14, 2009, B210335 [nonpub. opn.]) (Garau), we reversed the dismissal as to Garau and noted that, since the Department did not appeal, the judgment of dismissal as to it was final. In this case, the trial court erroneously concluded that our decision in Garau barred the Department's second petition. Because a judgment dismissing an action as unripe is not a final judgment on the merits, the Department is not barred from challenging the Board's decision in its second petition. We reverse and remand for further proceedings.
Unless specified otherwise, all subsequent references are to the Code of Civil Procedure.
PROCEDURAL SUMMARY
We take judicial notice of the record and our decision in Garau, supra, B210335, and draw on that decision for this procedural summary. (See Evid. Code, § 452, subd. (c) & (d)(1).)
In a decision issued on September 4, 2007, the Board concluded that the Department had failed to properly serve Garau with a notice of rejection during probation. The Board revoked the rejection during probation and ordered that Garau be reinstated with back pay. The Department filed its first petition for writ of administrative mandate on February 22, 2008. Garau requested an administrative hearing to resolve the amount of back pay. While the administrative proceeding on back pay was pending, she filed two cross-petitions to compel the Department to comply with the Board's reinstatement order under section 1085 (the reinstatement petition) and to set aside a portion of the Board's decision relevant to the calculation of back pay under section 1094.5 (the back pay petition). The Board demurred to Garau's back pay petition on the grounds that it was unripe and she had not exhausted her administrative remedies. The trial court sustained the Board's demurrer to the back pay petition. It struck Garau's reinstatement petition and the Department's petition. The entire matter was dismissed.
Garau appealed, but the Department did not. While Garau's appeal was pending, the administrative proceedings on back pay were terminated, and the Department filed its petition in this case. Our decision in Garau, supra, B210335, issued on October 14, 2009. The Department moved for judgment on its second petition on June 30, 2010. The motion was denied on September 9, 2010, on the ground that the judgment of dismissal in the earlier case was final. The Department filed a proposed judgment stating that its petition for a writ of administrative mandate was denied. Garau objected to the proposed judgment and filed her own proposed order stating that the motion for judgment was denied. On November 2, 2010, the trial court declined to consider the parties' papers. On November 5, 2010, the Department filed this appeal.
DISCUSSION
I
Garau argues the trial court's order denying the Department's motion for judgment is a nonappealable interlocutory order. She confuses a motion for judgment on the pleadings under section 438 with a motion for judgment on the writ under section 1094. A motion for judgment on the pleadings is in the nature of a general demurrer. It tests whether facts alleged in a complaint are sufficient to constitute a cause of action under any theory. (Dunn v. County of Santa Barbara (2006) 135 Cal.App.4th 1281, 1298 (Dunn).) An appeal may not be taken from the interlocutory order denying such a motion. (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1212-1213.) Here, it was procedurally impossible for the Department to move for a judgment on the pleadings as it had no reason to challenge the sufficiency of its own petition. A motion for judgment on the writ provides the exclusive means for "a streamlined review of an agency's decision" when a petition for a writ of mandate "presents no triable issue of fact or is based solely on an administrative record." (Dunn, supra, 135 Cal.App.4th at p. 1286, citing § 1094.) The Department's motion was expressly styled a motion for judgment under section 1094.
"Ordinarily, an appeal must be taken only from a final judgment, even in a mandamus action. [Citations.] However, there is also case law to the effect that an order denying a petition for writ of mandamus that effectively disposes of the action because no issues remain to be determined is also appealable. [Citations.]" (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1056; see also Covina-Azusa Fire Fighters Union v. City of Azusa (1978) 81 Cal.App.3d 48, 56.) In its September 9, 2010, minute order, the trial court denied the Department's motion for judgment, stating in relevant part that "[t]he County Appeal Decision precludes this action going forward. Judgment in the first filed case BS113391 relating to the same mistake is final." This minute order is not a model of clarity, but the parties agree it means that our decision in Garau, supra, B210335, bars the Department's second petition. The minute order does not indicate that the trial court intended to take any further action on the petition. The order is, therefore, appealable.
The proceedings following this minute order were complicated by Garau's objections to the Department's proposed judgment in this case and her objections to the trial court's orders in the related case (BS113391), in which the trial court denied Garau's back pay petition. In that case, Garau requested a statement of decision and filed objections to the tentative decision. Upon receiving the Department's proposed judgment in this case along with Garau's objections to it, the trial court rejected these papers as irrelevant to the statement of decision process that was underway in the related case. Garau does not argue that the trial court's refusal to consider the Department's proposed judgment in this case has any bearing on the appealability of the minute order. We conclude that the court's failure to enter a judgment resulted from its conflation of the two cases and not from any intent to take further action on the Department's second petition.
To clarify these complicated proceedings, we take judicial notice of the record in Garau's pending appeal from the denial of her back pay petition. (California Department of Industrial Relations v. California State Personnel Board (B230790).) (See Evid. Code, § 452, subd. (d).)
Specifically, in her objections to the proposed judgment the Department submitted to the trial court, Garau took the extreme position of interpreting the minute order to mean that our decision in Garau, supra, B210335, precluded the court from taking any action in this case. She maintained that the court could not even enter a judgment denying the Department's petition and that the only way to terminate this case was for the Department to voluntarily dismiss it. She argued further that the Department could appeal only from the judgment in the related case. The trial court did not rule on these objections, and Garau does not raise them in this appeal.
II
The trial court denied the Department's motion for judgment on the ground that the proceedings in this case were barred by our decision in Garau, supra, B210335. There, we held that the trial court abused its discretion in striking Garau's reinstatement petition as premature because the Board's decision on reinstatement was final and all administrative remedies with respect to it were exhausted. We reversed the judgment as to Garau, noting: "Since the Department failed to file a protective appeal from the entry of judgment after its section 1094.5 petition for writ of administrative mandate was stricken, the judgment against the Department is final. (See Lake v. Superior Court (1921) 187 Cal. 116, 119-120; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 888, p. 949.) There being no pending challenge to the propriety of the Board's reinstatement order, we shall remand this matter to the trial court with directions to issue a writ compelling the Department to immediately comply with the Board's reinstatement order of September 4, 2007 by fully reinstating Garau to the position of Industrial Relations Counsel III (Specialist), with permanent civil service employee status as of April 11, 2006." The Department contends that this language in our decision does not bar the proceedings in this case. We agree.
The doctrine of law of the case, which applies to later proceedings in the same case (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701), does not apply here as the Department initiated a separate judicial proceeding when it filed its present petition for writ of administrative mandate. Instead, "[t]he doctrines of res judicata and collateral estoppel apply to later litigation to give conclusive effect to a former judgment or an issue determined in a former proceeding. [Citation.]" (Id. at pp. 701-702.) In Garau, supra, B210335, we stated that the judgment was final as to the Department in the sense that no further judicial action, including appellate review, was available to the Department in that case. (See 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, §§ 363-364, pp. 985-986.) To be given res judicata effect, the former judgment must not only be final but must also be on the merits. (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1427-1428.) We did not say that the judgment in Garau was a final judgment on the merits, and indeed a judgment dismissing a prior action as premature does not bar refiling it after it has become ripe for adjudication. (Kroff v. Larson (1985) 167 Cal.App.3d 857, 861; Mercer Casualty Co. v. Lewis (1940) 41 Cal.App.2d 918, 923-924.)
Garau's arguments to the contrary are inapposite. She cites Pollock v. University of Southern California, supra, 112 Cal.App.4th 1416 (Pollock) for the proposition that res judicata bars a subsequent case involving substantially the same facts as a previously dismissed case. The Pollock court concluded that a judgment on a general demurrer was res judicata because the new complaint stated the same facts that were held not to constitute a cause of action in the former complaint. (Id. at p. 1428.) The demurrers to the complaints in the first and second case were sustained on the same ground. (Ibid.) Here, the Department's first petition was stricken as premature, but its second petition alleged that Garau had exhausted her administrative remedies. Because the ripeness of the second petition is not an issue in this case, it cannot be said that the two petitions were dismissed on the same ground.
In the trial court, Garau argued that the Department's second petition was barred by the one-year statute of limitations in Government Code section 19630 for challenging civil service rulings. The trial court expressly stated that it would not rule on that issue, and it is not raised on appeal.
Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157 (Ricard), also is distinguishable. There, the plaintiffs' second complaint was dismissed as a sham pleading, filed to circumvent the trial court's denial of the plaintiffs' request to add a claim for punitive damages to their complaint in a prior action against the same defendants. (Id. at p. 162.) The Department's second petition here was not a sham pleading filed to avoid the trial court's dismissal of its first petition as premature. Rather, it was filed at the end of the administrative proceeding in conformance with the trial court's ruling that all administrative remedies needed to be exhausted first. Unlike Ricard and Pollock, this case does not involve successive dismissals of causes of action for legal insufficiency.
Alternatively, Garau contends that the Department has forfeited its right to appeal because it did not appeal the dismissal of its first petition and did not appeal from the judgment in the related case, which was entered on December 9, 2010. The December 9, 2010 judgment is not part of the record in this appeal. Besides, the Department's failure to appeal from a judgment in another case is irrelevant to the timeliness of this appeal as the Department does not purport to seek review of that judgment, and its appeal from the order in this case is timely. Section 906, which precludes our review of "any decision or order from which an appeal might have been taken," does not apply here.
In her respondent's brief and at oral argument, Garau made repeated references to documents included in the record of her pending appeal (California Department of Industrial Relations v. California State Personnel Board (B230790)), without identifying them as such or requesting that we take judicial notice of them. We find it unnecessary to take judicial notice of the December 9, 2010 judgment in the related case as it is irrelevant to this appeal. Additionally, we note that the administrative record does not bear out Garau's contention at oral argument that, in a letter to the Board, the Department admitted that its petition had been dismissed on the merits. The letter in question was sent to the Board on July 21, 2008, a month after the original case was dismissed for lack of ripeness and while the administrative proceedings on back pay were still pending. In it, the Department stated only that its petition was dismissed for lack of ripeness, and the dismissal was res judicata (i.e. binding) on the Board because it, too, was a party to the petition. Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 52, cited in the letter, is consistent with the Department's present position that, where a judgment of dismissal is on a technical or formal ground, it does not bar the filing of a later sufficient complaint.
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Nor would a reversal in this case conflict with our holding in Garau, supra, B210335, that the Department should be compelled to immediately reinstate Garau. As the court explained in Lomeli v. Department of Corrections (2003) 108 Cal.App.4th 788, which we cited in Garau, the Board's administrative order is not automatically stayed pending resolution of a petition for administrative mandate challenging the merits of that administrative order. (Id. at p. 798.) The Department does not seek to revisit our conclusion that it had a duty to comply immediately with the Board's reinstatement order. But by the same token Garau's reinstatement does not preclude the Department from seeking a judicial determination of the merits of the Board's conclusion that service of the notice of rejection during probation was improper.
DISPOSITION
The order denying the Department's motion for judgment is reversed, and the matter is remanded to the trial court for further proceedings consistent with this decision. The Department is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.