Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. VCVVS042997, Thomas S. Garza, Judge.
Michael R. Clancy and David J. Dolloff for Plaintiffs and Appellants.
Cummings, McClorey, Davis, Acho & Associates and Sarah L. Overton for Defendants and Respondents.
OPINION
Gaut Acting P.J.
1. Introduction
Plaintiff and appellant Kelly Gregg is a school bus driver whose employment by the District was terminated when his special driver certificate was suspended and revoked by the Department of Motor Vehicles (DMV). Gregg and CSEA appeal from the trial court’s judgment granting their petition for peremptory writ of mandate.
Victor Valley Union High School District and its Personnel Commission.
California School Employees Association and its Victor Valley High Chapter No. 243.
The threshold issue concerns appealability. Appellants purport to appeal from a judgment in their favor. The record does not disclose any trial court rulings adverse to appellants. For these reasons, we dismiss the appeal without prejudice. (Code Civ. Proc., § 902.)
2. Factual and Procedural Background
To offer some context for our decision, we briefly summarize the record.
Gregg was a permanent classified employee of the District, employed as a school bus driver. In July 2003, the DMV suspended Gregg’s special driver certificate for one year and the District suspended Gregg’s employment.
Subsequently, on January 22, 2004, the District dismissed Gregg because he did not have a valid special driver certificate. Gregg requested an appeal hearing. According to the District, Gregg’s employment was terminated because he was not legally qualified to work as a school bus driver and not for disciplinary reasons. Therefore, he was not entitled to an appeal hearing for his termination.
The DMV revoked Gregg’s special driver certificate in April 2004. Gregg filed a petition for writ of mandate, successfully challenging the DMV revocation (the DMV petition). In January 2005, the DMV and Gregg settled the case with the DMV agreeing to set aside the revocation.
After the DMV set aside the revocation, CSEA demanded of the District that “Gregg be reinstated with full back pay, including sick and vacation leave accrual and seniority, retroactive to January 22, 2004.” The District rejected the demand for reinstatement.
In consequence, the CSEA and Gregg filed the subject petition for peremptory writ of mandate for violations of Education Code sections 45302 through 45308, the Fourteenth Amendment, and the California Constitution (the CSEA Petition).
In December 2007, the trial court issued a statement of decision concerning the CSEA petition in which it ordered the District “to provide [Gregg] his post-termination hearing and to take all appropriate actions based on the result of that hearing.”
After considering various objections by the parties, the trial court entered an order and judgment on April 4, 2008, commanding the District to reconsider its action denying Gregg a hearing in light of the court’s statement of decision.
We grant appellants’ request for judicial notice filed September 2, 2008, for the reasons stated in our order of November 18, 2008.
In the meantime, the District conducted a post-termination hearing for Gregg on March 7, 2008, in which the District affirmed the termination. As summarized in its written decision, the District’s three-person Personnel Commission concluded the District had just cause to dismiss Gregg because he did not have a valid special driver certificate. Furthermore, the District acted within its discretion when it denied Gregg a leave of absence or an alternative position pending his appeal of the DMV revocation. Finally, the issue of whether Gregg was entitled to reinstatement in March 2005 was not at issue. Rather, the superior court ordered a post-termination hearing concerning only the validity of the January 2004 dismissal. The Personnel Commission declined to decide whether Gregg was eligible for future employment.
Although the Commission’s written decision is part of the record, the administrative hearing record was never filed in the trial court or reviewed below. Instead, after the District filed a notice of compliance in the superior court, CSEA and Gregg filed a response, asserting that the failure to consider the issue of reinstatement meant that the District had not complied with the court’s statement of decision. The trial court never ruled upon or made any findings regarding whether the District had complied with the writ and never conducted a review of the administrative proceedings.
The peremptory writ was not actually issued and filed until April 18, 2008. CSEA and Gregg filed a notice of appeal from the entry of judgment in their favor.
3. Dismissal
As the foregoing demonstrates, CSEA and Gregg were the prevailing party in the superior court. The court rendered a statement of decision, order, and judgment in their favor, commanding the District to provide Gregg with a post-termination hearing. The District did not appeal from that judgment. Instead, the District expeditiously provided Gregg with a hearing even before the peremptory writ was issued.
The difficulty now confronting CSEA and Gregg is that, although the judgment favored them, they object to the nature and scope of the subsequent hearing provided by the District. In particular, they contend the District refused to consider the issue of Gregg’s reinstatement by the District. Unfortunately, for purposes of appellate review, the trial court has never been afforded the opportunity to decide whether the District complied with the writ as issued by the lower court and has never reviewed the administrative proceeding. Instead, CSEA and Gregg filed their notice of appeal without first obtaining a trial court ruling on these questions.
Two alternatives may be available to CSEA and Gregg, either a second petition for peremptory writ of mandate or supplemental petition using the same case number. (See California Administrative Mandamus (Cont.Ed.Bar 3d ed. 2009) Procedures After Trial, § 15.22, p. 569, citing Carey v. Board of Medical Examiners (1977) 66 Cal.App.3d 538, 540; Giannini Controls Corp. v. Superior Court (1966) 240 Cal.App.2d 142, 151; and Pollak v. State Personnel Bd. (2001) 88 Cal.App.4th 1394, 1401.)
But, at present, there is no aggrieved party adversely affected by a judgment or order: “An appeal from a judgment can only be taken by an aggrieved party thereto, and the plaintiff herein does not sustain that relation to said judgment. A party cannot appeal from a judgment in his favor. [Citations.] This is the general rule.” (Maxwell Hardware Co. v. Foster (1929) 207 Cal. 167, 170; Robinson v. Superior Court (1984) 158 Cal.App.3d 98, 107; Code Civ. Proc., § 902.)
In our view, CSEA and Gregg must return to the superior court for a determination as to whether the District has complied with the writ. Other proceedings may then flow from that determination but we offer no opinion on that point.
4. Disposition
Consequently, on the court’s own motion, this appeal is DISMISSED without prejudice. (See Jordan v. Malone (1992) 5 Cal.App.4th 18, 22 [appellant’s responsibility to provide appealable judgment; trend toward strict adherence to appealability requirements]; Shpiller v. Harry C’s Redlands (1993) 13 Cal.App.4th 1177, 1179-1180 [no loss of right to appeal, but appellant must file a new notice of appeal once appealable order or judgment is filed].)
We concur: King J., Miller J.