Opinion
C074701
10-24-2017
GORDEN GRAHAM, Plaintiff and Appellant, v. COUNTY OF SUTTER, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CVCS122561)
Appellant Gorden Graham (Graham) appeals from denial of his request for a writ of mandate requiring Respondent County of Sutter (Sutter County) to provide him a post-termination arbitration proceeding after he failed to comply with the deadline for requesting arbitrators to advance that proceeding. The trial court denied Graham's request finding he had no beneficial interest in the arbitration proceeding and had been afforded the opportunity to have that proceeding. It further found Sutter County did not abuse its discretion in denying him relief from his noncompliance with the deadline to move forward with the arbitration proceeding. Finally, it found his claims were barred by laches because of the unreasonable and unexplained delay in instituting the writ proceeding that prejudiced Sutter County, the county having hired a replacement for his job by the time the writ was filed.
We affirm the judgment. Graham's right to due process was not violated under the circumstances herein. The trial court did not abuse its discretion in determining that Sutter County acted within its discretion in denying Graham's request to continue with the arbitration nor did it err in finding there was no "good cause" exception to holding Graham to the deadline to which he had agreed. Under the circumstances, we need not address the issue of laches.
FACTS AND PROCEEDINGS
Graham was hired by Sutter County in 1994 and held the position of Fire Captain in 2012. In May 2012 Graham was convicted of domestic abuse in violation of Penal Code section 273.5(a) and destroying a cellular telephone with the intent of preventing its use to summon help in violation of Penal Code section 591.5. In light of those convictions, the Sierra-Sacramento Valley Emergency Medical Services Agency revoked Graham's Emergency Medical Technician (EMT) Certification on July 3, 2012.
On July 10, 2012, Sutter County sent Graham a notice of intent for disciplinary action, stating its intent to terminate him, in part, because once he lost the EMT Certification he no longer maintained the minimum qualifications to be a Fire Captain.
On July 16, 2012, Graham spoke with individuals from Sutter County regarding Sutter County's intent to terminate him. During this call, Graham did not dispute his loss of the EMT Certification, but did request that Sutter County delay acting on the proposed termination. On July 25, 2012, Graham was personally served with a notice of termination that was to become effective July 27, 2012. He was advised he had the right to appeal his termination by filing a notice of appeal of the termination with Karen Ropp, Sutter County's personnel director, within seven calendar days of the notice of termination. Graham timely appealed his termination on July 30, 2012.
On July 31, 2012, Graham's attorney, Daniel Thompson, spoke with Ropp and discussed his plan to get one of Graham's convictions expunged so that Graham could regain his EMT Certification. Thompson said that he thought it would be "more efficient" to resolve the licensing issue before Graham decided to pursue an appeal of his termination.
The original deadline for Graham to file his written response to the charges in the notice of termination was August 8, 2012, but Ropp provided Graham a 30-day extension after she was informed by Thompson that a judge was going to sign a dismissal and expungement of one of Graham's convictions on either August 6 or August 7. The judge dismissed the Penal Code section 591.5 conviction on August 9, 2012, but the Sierra-Sacramento Valley Emergency Medical Services Agency refused to reinstate Graham's EMT Certification.
Sutter County began its recruitment to replace Graham on August 31, 2012. On September 7, 2012, Ropp gave Graham a second extension until September 10 to file his written response to the termination. Graham filed his written response on September 10, acknowledging that he still did not have his EMT Certification, a prerequisite to the Fire Captain position.
Sutter County issued its written denial of Graham's appeal of his termination on September 12, 2012, primarily based on the undisputed fact that Graham did not meet the minimum requirements for the Fire Captain position by virtue of his lack of an EMT Certification, which mooted any other arguments against the termination. This letter also advised Graham of his right to speak directly with Ropp about the termination decision and that the deadline for any such meeting was September 21, 2012.
On September 14, 2012, Ropp told Thompson that September 21, 2012, was also the deadline for Graham to request a list of arbitrators pursuant to Sutter County's County Personnel Rules, section 18.6 if he wanted to pursue arbitration of the termination dispute.
On September 17, 2012, Thompson asked Ropp whether Sutter County would consider postponing the arbitration pending a hearing before an administrative law judge regarding the EMT revocation which was to take place in March 2013. Not having received a response, on September 21, 2012, Thompson asked Ropp for the arbitration list in order to preserve Graham's right to arbitrate and, later that day, Ropp agreed to extend the deadline to ask for the arbitrator's list pending a conversation with county counsel concerning the requested delay of the arbitration proceedings. The new deadline to request the arbitrator list according to this email exchange was September 25, but they agreed in a later email to extend the deadline to September 28, 2012.
On September 24, Ropp advised Thompson that Sutter County would not agree to table the arbitration pending the outcome of the EMT proceedings. In response, Thompson requested to speak directly to county counsel about the issue, was provided county counsel's contact information, and thereafter exchanged voice messages and an e-mail with him. On September 28, Thompson spoke directly with county counsel Bill Vanasek who stood by his refusal to grant the extension of the arbitration hearing pending the outcome of the EMT hearing. Vanasek gave Graham one final extension of the deadline to request the list of arbitrators to 5 p.m. on October 5, 2012, to allow Thompson to discuss with Graham whether Graham wanted to continue with the arbitration under the circumstances. In the meantime, and also on September 28, 2012, Sutter County's period of accepting applications for a replacement for Graham closed.
On October 3, Thompson discussed continuing the arbitration with Graham, and Graham decided to go forward with arbitration despite the unresolved EMT Certification issue. Despite this, the October 5, 2012, deadline passed with no communication from Thompson, who later said he forgot to meet the county's deadline due to a "hectic" work week.
Thompson contacted Ropp on Monday October 8 to request the arbitration list, but she denied his request as untimely. The next day, Thompson asked county counsel to provide him the professional courtesy of extending the deadline to continue with the arbitration, but this request was also denied.
Thereafter, Sutter County continued with its process for replacing Graham. On October 20-24, 2012, Sutter County conducted testing for Graham's replacement. Oral interviews took place on November 30, 2012. The list for a replacement was certified December 4, 2012, and Sutter County appointed Graham's replacement on December 29, 2012.
Graham filed this case against Sutter County on December 27, 2012, and served the County on January 25, 2013.
In ultimately denying the requested relief, the trial court found that the relevant facts were undisputed and established that Graham lost his EMT Certification as a result of criminal convictions and that this certification was a condition of his employment. Graham was served with a "Notice of Proposed Disciplinary Action" on July 10, 2012, which was to become effective July 25, 2012. Sutter County intended to terminate Graham for failure to have a valid EMT Certification and did so.
The trial court found that, thereafter, Graham filed a timely notice of appeal on July 30, 2012, but "failed to meet an agreed upon deadline to request a hearing." It rejected Graham's argument that Sutter County had a "non-discretionary duty to provide [Graham] with an evidentiary hearing, which [Sutter County] refused to provide when [Graham] missed an agreed upon deadline to request a hearing and there was good cause for [Graham's] failure." In so doing, the trial court specifically found: (1) Graham did not have a constitutional right to an evidentiary hearing where he "did not dispute the factual basis for his termination" and thus "had no clear and present beneficial interest in having that hearing." Further, the pertinent rules only guaranteed him an "opportunity" for a hearing, which he was afforded; (2) Sutter County's act of denying the untimely request for arbitration was a discretionary act, and was not an abuse of discretion where Graham's attorney simply forgot to request the arbitrators list prior to the agreed upon deadline; and (3) Graham's request was also barred by the doctrine of laches because the 82 day delay in bringing the writ was "unnecessary and unexplained" and in the interim Sutter County hired his replacement.
Graham appeals. He argues that: (1) Sutter County had a clear, present, and ministerial duty and Graham had a clear, present, and beneficial right in performance of that duty; (2) relief should have been granted from an arbitrary deadline where Graham demonstrated good cause and lack of prejudice; and (3) laches did not apply because Sutter County did not show it was prejudiced as a result of the delay. In response, Sutter County argues: (1) Graham has forfeited his arguments on appeal by failing to include all material evidence in his opening brief; (2) Substantial evidence supports the trial court's findings that there was no clear and present duty to provide a full-evidentiary post-termination appeal hearing and that Graham did not have a clear and present beneficial interest in having such a hearing. This further supports the trial court's finding that Sutter County's denial of Graham's untimely request for arbitration was a discretionary act; (3) The trial court did not abuse its discretion when it denied appellant's request for relief from his failure to meet the mutually agreed upon deadline to request arbitration; and (4) Substantial evidence supports the finding that Graham's delay in filing his writ petition was unreasonable, that Graham acquiesced to the delay, and that Sutter County was prejudiced thereby.
DISCUSSION
I
Scope of Review
Graham seeks relief on the basis of Code of Civil Procedure section 1085, which authorizes a writ to compel the performance of an action required by law. (Code Civ. Proc., § 1085, subd. (a).) Writ of mandate relief is available if Graham shows that Sutter County had a ministerial duty to provide him the requested arbitration hearing and that Graham was beneficially interested in having that hearing. (See Daily Journal Corp. v. County of Los Angeles (2009) 172 Cal.App.4th 1550, 1558.) In contrast, writ relief is not available to compel the exercise of discretion in a particular manner. (See Munroe v. Los Angeles County Civil Service Com. (2009) 173 Cal.App.4th 1295, 1300, 1303 (Munroe) [appellate court must uphold agency's judgment even where "reasonable minds may disagree as to the wisdom of the agency's action"]; Daily Journal Corp. at pp. 1555, 1559 [refusing writ to force government to seek reimbursement of alleged overpayments].)
Because Graham has a fundamental vested right in continued employment with Sutter County, the trial court was required to exercise its independent judgment reviewing Sutter County's decision to deny the arbitration hearing. (See Hall-Villareal v. City of Fresno (2011) 196 Cal.App.4th 24, 29 [citing Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817, fn. 8.].) Appellate review of the trial court's determination under these circumstances is generally confined to whether the findings and judgment are supported by substantial evidence. (See Tafti v. County of Tulare (2011) 198 Cal.App.4th 891, 896.) All conflicts and inferences are resolved in favor of the judgment. (Melkonians v. Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159, 1168.) However, de novo review applies to resolutions of questions of law based on undisputed facts, as well as claims of a deprivation of due process of law. (Tafti, at p. 896.)
II
Graham Has Not Been Denied Due Process of Law
A. Sutter did not have a ministerial duty to provide the arbitration where Graham failed to follow Sutter County's procedures.
Graham argues that Sutter County had a ministerial duty to provide him an arbitration review of Sutter County's termination decision regardless of his failure to follow the Sutter County's appellate procedures and by failing to grant him arbitration review, Sutter County denied him due process of law.
What Graham's argument ignores is that Sutter County had only a duty to provide him with an opportunity for an arbitration review of the termination decision and appeal therefrom, which opportunity he was given. (See, e.g., Gov. Code, §§ 3254, subd. (b), 3254.5, subd. (a).) Graham has provided no evidence or controlling authority that once he initiated the appellate process, he had a vested interest in completing that appellate process despite noncompliance with the reasonable procedures imposed upon him.
Once Graham failed to proceed with his right to arbitration, Sutter County's decision not to grant an extension of the October 5, 2012, deadline was discretionary, not ministerial, because Sutter County was not legally bound to provide him an arbitration proceeding in the face of his noncompliance with the procedural deadlines. (See Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002-1003 [defining a ministerial act as one "a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act's propriety or impropriety, when a given set of facts exists"].)
Here, the relevant Sutter County procedural rules specified that Graham had seven days to appeal Sutter County's decision to terminate him. Graham filed that appeal. Graham then had 14 days to file his written response. Sutter County granted Graham's request to extend this deadline on two different occasions, and Graham ultimately filed his written response to Sutter County's termination decision. Thereafter, Sutter County's rules imposed a 10-day deadline for the selection of "arbiters" if the parties had not come to an agreement on a disposition of the subject of the appeal. The pertinent provision provided, "In the event an agreement regarding disposition of the matter cannot be reached within ten (10) calendar days after filing of the answer to the charges, the parties shall request a list of seven arbiters from the State Mediation and Conciliation Service or American Arbitration Association." Sutter County appears to construe this section to mean the arbiter list must be requested within 10 days of the filing of Graham's response based upon its setting of the original deadline for such request 10 days after Graham's written response, which was September 21. Graham appears not to disagree.
Sutter County reviewed Graham's response and upheld his termination in a written decision on September 12. Sutter County then extended the deadline for Graham to request the "arbiter" list to September 25 and later to September 28. Ultimately, Sutter County agreed to extend the deadline one last time to 5 p.m. on October 5, 2012, in order to allow Graham to weigh whether he wanted to continue with the arbitration considering his EMT Certification appeal would remain unresolved and his Certification revoked during the pendency of the arbitration. Graham advised Thompson that he wanted to proceed with the arbitration, but Thompson apparently forgot to follow up with Sutter County and thus failed to comply with the deadline.
Graham has provided no evidence or controlling authority that Sutter County had a ministerial duty to forgive his noncompliance with Sutter County's procedural rules and the final agreed-upon deadline. Further, although Graham points to the inclusion of the word "shall" in the procedure for selecting "arbiters" in section 18.6, subdivision (A)(3), that word does not alter this analysis because implicit in the decision to select the "arbiters" is the decision to continue prosecuting the appeal. Clearly, Graham was not obligated to continue his appeal, and Sutter County was under no ministerial obligation to provide the arbitration unless Graham timely elected to continue with that proceeding. Further, Sutter County's interpretation of its regulation is entitled to deference, and we do not view its interpretation as clearly erroneous or unauthorized. (See Munroe, supra, 173 Cal.App.4th at p. 1303.)
Further, even if section 18.6, subdivision (A)(3) merely imposed a deadline for the parties to reach an agreement and not for the request of the list, Graham did not object that any of the deadlines being imposed upon him for his request of the arbiter list were unreasonable or contrary to Sutter County's procedural rules. Thompson conceded in his request for relief that the parties had previously agreed to the October 5 deadline. We simply find no ministerial duty to provide the arbitration hearing under these circumstances where Graham failed to timely request the list of "arbiters" that was a prerequisite to continuing with the appeal.
B. Due Process does not require that Sutter County allow a good cause exception to its internal appeal deadline under the circumstances of this case.
Graham has provided authority suggesting a right to a good cause exception for failure to comply with deadlines associated with initiating an administrative appeal of a termination decision. (See Gonzales v. State Personnel Bd. (1977) 76 Cal.App.3d 364.)
There is authority requiring a good cause exception for late filing of an administrative appeal of dismissal of employment regardless of whether such exception is expressly delineated by statute or related regulations. (See Hall-Villareal v. City of Fresno, supra, 196 Cal.App.4th at pp. 33-34 [collecting authorities and holding that due process requires a good cause exception to administrative procedures where "the fundamental vested right to continued employment is at issue"].) The relevant statutory structure at issue here recognizes a party to the administrative appeal may seek a continuance of a merits hearing for good cause (see Gov. Code, § 11524, subd. (b)) and an agency may in its discretion grant relief from default for failure to file a written appeal (Gov. Code, §§11506, subd. (c); 11520, subd. (b)). But this does not mean that the person prosecuting the appeal receives a right to a "good cause" exception to default arising from missing agreed-upon deadlines occurring during the course of an administrative appeal that results in the dismissal of that appeal. Neither Sutter County's Personnel Rules nor the Government Code overlay provide for such relief. (Gov. Code, § 11500 et seq.) Nor has this Court's research discovered any authority requiring a good cause exception for noncompliance with the internal procedural deadlines associated with the prosecution of an administrative appeal. There must be some measure of personal accountability in prosecuting an administrative appeal, and we decline to find Graham was deprived of due process under the circumstances described herein.
Here, Graham received pretermination notice and a predeprivation Skelly hearing (Skelly v. State Personnel Board (1975) 15 Cal.3d 194). He was terminated and timely filed an appeal. He received multiple extensions to file his written response to the termination and ultimately filed one that did not challenge that he was without his EMT Certification. Sutter County reviewed Graham's response and upheld his termination in a written decision. Thereafter, Graham received multiple extensions of the deadline to request arbiters so that he could make his determination on whether he wished to proceed with the appeal. During this period, Sutter County denied Graham's request to table the arbitration pending the outcome of Graham's appeal of the EMT Certification revocation. Graham's counsel ultimately failed to comply with the October 5, 2012, deadline to request the list of arbiters. Sutter County was entitled to enforce this reasonable deadline. (See Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, 797 [recognizing the enforceability of a reasonable civil statute of limitations and noting even a criminal defendant "may lose constitutionally protected procedural rights by inadvertent failure to assert them in a timely manner"].)
We note that, at the time that Graham failed to request the list of arbitrators, he still did not have a valid EMT Certification and his hearing upon which he hoped to regain that Certification from an entity unrelated to Sutter County would not occur until March 2013, at least five months after that deadline. It is also undisputed that possession of the EMT Certification was a condition of his employment in the position of Fire Captain, which he did not have at the time of his termination. Thus, it is highly unlikely that an arbitration proceeding, which was not binding but could be reviewed by Sutter County's Board of Supervisors, would have altered Sutter County's termination of Graham on the basis that Graham did not have the required EMT Certification. (Sutter County Personnel Rules and Regulations section 18.8, subd. (A)(1) ["The opinion shall be advisory only"], subd. (A)(4) [allowing appeal to Board of Supervisors who would determine whether the termination would stand].)
The result is no different under the Firefighter's Bill of Rights, which provides an opportunity for an appeal utilizing Sutter County's procedures, but does not alter the necessary qualifications for his position of Fire Captain. (See Gov. Code, §§ 3254, subd.(b) [forbidding punitive action "without providing the firefighter with an opportunity for administrative appeal"], 3254.5, subd. (a) [authorizing administrative appeal pursuant to "rules and procedures adopted by the employing department"].)
III
Code of Civil Procedure Section 473Finally, Graham attempts to argue that he is somehow afforded relief by way of the provisions of Code of Civil Procedure section 473.
Code of Civil Procedure section 473 provides in pertinent part that a court "may . . . relieve a party or his . . . legal representative from a judgment, dismissal, order, or other proceeding taken against him . . . through his . . . mistake, inadvertence, surprise, or excusable neglect."
Graham's reliance on Code of Civil Procedure section 473 is misplaced for at least two reasons. First, Sutter County's adherence to the parties' mutually agreed deadline for requesting a list of arbitrators in order for Graham to continue to pursue his challenge to his termination is not a "judgment, dismissal, order, or other proceeding taken against him."
Second, and more importantly, Graham did not seek relief pursuant to Code of Civil Procedure section 473 in the trial court. He merely alluded to section 473 as further support for his argument that Sutter County was required to show good cause for its refusal to relieve him of his failure to meet the deadline to which he agreed. He does no more here and we have resolved that issue above. Code of Civil Procedure section 473 has no bearing on the issues before us.
DISPOSITION
The judgment of the trial court is affirmed. Sutter County is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
HULL, Acting P. J.
We concur:
MAURO, J.
DUARTE, J.