Opinion
D040108.
7-3-2003
NATIONAL CITY POLICE OFFICERS ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF NATIONAL CITY, Defendant and Respondent.
The court sustained without leave to amend the demurrer of the City of National City (City) to a verified petition for writ of mandamus and complaint for declaratory relief filed by National City Police Officer James White and the National City Police Officers Association (collectively Appellants). Appellants contend: (1) writ relief under Code of Civil Procedure section 1085 is proper because sufficient facts were pled to show City has a clear and present duty and White has a clear, present and beneficial right to the performance of that duty; (2) writ relief under section 1094.5 is proper as an alternative theory of liability; and (3) declaratory relief is proper to determine the appropriateness of Citys actions. We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Section 1085 is generally employed to compel the performance of a purely ministerial duty. (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501.) "A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such acts propriety or impropriety, when a given state of facts
FACTUAL AND PROCEDURAL HISTORY
Because this case arises from a demurrer sustained without leave to amend, we deem true all well-pleaded factual allegations of the complaint. (Masters v. San Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 35.)
In fall 1999, White began taking courses at San Diego State University towards a bachelors degree in English, which requires that a majority of the courses be in British and American literature. In both fall 1999 and spring 2000, City approved Whites requests for tuition reimbursement. In fall 2000, Citys personnel director did not approve Whites request for reimbursement because the courses were not relevant to Whites position as a police officer and White already had a four-year degree. White filed a grievance that was heard by a grievance hearing board, which recommended that the city manager approve Whites request. The city manager agreed and City reimbursed White for fall 2000 tuition.
White then sought reimbursement for two English literature courses taken in fall 2001. Citys personnel director denied the request because the courses were not related to Whites employment. White filed another grievance. On September 21, 2001, Citys personnel director refused to consider the grievance and denied him a hearing before a grievance hearing board.
On December 6, 2001, Appellants filed a verified petition for writ of mandamus and complaint for declaratory relief to require City to reimburse White for tuition or, alternatively, to require City to follow its grievance procedures. On January 22, 2002, City demurred. On March 8, the court granted Citys request for judicial notice of the memorandum of understanding between City and the National City Police Officers Association (MOU). After a hearing, the court sustained the demurrer without leave to amend on March 26, 2002. Judgment was entered on April 25, 2002.
DISCUSSION
I. Standard of Review on Demurrer
We review an order sustaining a demurrer without leave to amend under well-established rules as stated in Blank v. Kirwan (1985) 39 Cal.3d 311, 216 Cal. Rptr. 718, 703 P.2d 58: " We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Id. at p. 318.)
We review de novo whether to sustain the demurrer in this case because the ruling involves the interpretation of the MOU and its application to the facts alleged in the petition/complaint. (See Barnett v. Firemans Fund Ins. Co. (2001) 90 Cal.App.4th 500, 507.)
II. Writ of Mandate
Appellants contend their petition stated facts sufficient to constitute a cause of action for writ relief under either section 1085 or section 1094.5, as alternate theories of liability. The nature of the agency decision or action determines whether ordinary mandate (section 1085) or administrative mandate (section 1094.5) is appropriate. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848 (Bunnett).) In general, administrative mandate is used to review actions or decisions in which a hearing must be given and ordinary mandate is used when the agency is not required to hold an evidentiary hearing. (Ibid.)
We first determine whether Appellants petition/complaint has stated facts from which an ordinary writ of mandate should issue to either reimburse White for tuition or to allow White to pursue his grievance. Under section 1085, subdivision (a), a writ of mandate will lie "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled . . . ." The requirements for the writ are " (1) a clear, present, and usually ministerial duty upon the part of the respondent . . .; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty . . . . " (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540, 869 P.2d 1142.) In order to determine whether City has a duty and White has a right to tuition reimbursement for the courses he took in fall 2001, we look at the MOU. Article 14 provides that tuition may be reimbursed if certain criteria are met, including the following: "A proposed course of instruction is related to the employees employment with the City, or the course is required for a degree in a closely related field. The City Manager or his designee has the final authority on determining whether a course or degree is job related." (Italics added.) The MOU defines "closely related to law enforcement" as follows: "A formal course of academic study in a discipline directly related to municipal law enforcement which by virtue of having completed the prescribed courses of study, an individual would reasonably be expected to have acquired skills that would make the individual a better Police Officer. Examples of a closely related field are: Police Administration, Criminal Justice Administration, Law Enforcement Administration, Public Administration and Jurisprudence. The City Manager or designee will make the final determination as to a program[s] relatedness to law enforcement." (Italics added.) exists. Discretion, on the other hand, is the power conferred on public functionaries to act officially according to the dictates of their own judgment." (Id. at pp. 501-502.)
The parties agree the city managers designee is the personnel director.
In this case, City did not have a ministerial duty to approve Whites request for tuition reimbursement. White seeks reimbursement for two literature courses taken to pursue a bachelors degree in English. Because English is not listed as a field closely related to law enforcement, the MOU did not require approval of Whites application.
Because approval of Whites request was not a ministerial act, City was required to exercise its discretion in order to determine whether the literature courses White took are closely related to law enforcement. "A writ of mandate will also lie to correct an abuse of the discretion vested in a court, official or board, though it will not lie to control the exercise of the discretion reposed in those bodies. [Citations.] In such a case the party seeking the writ must make some showing that the body invested with discretion has acted arbitrarily, capriciously, fraudulently, or without due regard for his rights and that the action was prejudicial to him." (Fair v. Fountain Valley School Dist. (1979) 90 Cal. App. 3d 180, 187, 153 Cal. Rptr. 56.) "In determining whether an agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agencys action, its determination must be upheld." (Helena F. v. West Contra Costa Unified School Dist. (1996) 49 Cal.App.4th 1793, 1799.)
In this case, City did not abuse its discretion by denying Whites request because reasonable minds may disagree as to whether literature courses towards an English degree are closely related to law enforcement. Appellants contend, however, that because Whites previous requests for tuition reimbursement for English courses were approved by either the personnel director or the city manager after a grievance hearing, the City abused its discretion by denying this request. We note that Article 29 of the MOU provides that "the waiver of any breach, term or condition of this memorandum by either party shall not constitute a precedent in the future enforcement of all its terms and provisions." Accordingly we reject Appellants contention.
Appellants further contend they have stated facts sufficient to compel issuance of a writ to require City to follow its grievance process. The MOU does not provide for a grievance in this case. Article 14 of the MOU provides that the city manager or his designee "has the final authority" and "will make the final decision" whether a course or degree is closely related to law enforcement. The word "final" means "not to be altered or undone" or "relating to a concluding court action or proceeding." (Websters 10th New Collegiate Dict. (1998) p. 436.) If the city manager or his designees decision can be overturned through the grievance process, then the decision would not be final and these two statements would be mere surplusage. "Such a reading violates the " . . . cardinal rule of construction . . . that . . . a construction making some words surplusage is to be avoided. " " (Thompson v. Superior Court (1997) 53 Cal.App.4th 480, 486.) Therefore, the personnel directors decision that a course is not closely related to law enforcement may not be grieved.
Finally, we reject Appellants contention that they have stated facts sufficient to constitute a cause of action for administrative mandate under section 1094.5 "Judicial review via administrative mandate is available only if the decision[] resulted from a "proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency." " (Bunnett, supra, 35 Cal.App.4th at p. 848 .) Article 14 does not provide for a hearing to determine whether a degree or course is closely related to law enforcement. Although the grievance process requires a hearing in certain situations, this decision may not be grieved.
III. Declaratory Relief
Appellants contend they have stated facts sufficient to state a cause of action for declaratory relief under section 1060 as to Citys decision to disallow Whites grievance. Declaratory relief is not available to review Citys decision because "an action for declaratory relief is not appropriate to review an administrative action." (State of California v. Superior Court (1974) 12 Cal.3d 237, 249; County of Luis San Obispo v. Superior Court (2001) 90 Cal.App.4th 288, 296.) Administrative mandate is the appropriate procedure for such a review. (Obispo, at 296.) An action for declaratory relief also does not lie as to Citys interpretation of the grievance process as outlined in the MOU. "An action for declaratory relief does not lie when a complaint alleges no facts showing an enforceable contractual right in the plaintiff and only a judgment for the defendant can be entered." (Dynamic Industries Co. v. City of Long Beach (1958) 159 Cal. App. 2d 294, 300, 323 P.2d 768.)
DISPOSITION
The judgment is affirmed. Each party is to bear its own costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., and McINTYRE, J.