Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04CS01243
DAVIS, J.
This is the third appearance of plaintiff Adriannne Pitts in our court concerning conclusion of her employment as a police officer for the City of Sacramento (City). In this matter, plaintiff appeals the trial court’s denial of her petition for a writ of mandate directing her reinstatement to active status as a police officer. We will affirm the judgment.
Background
“After a hearing officer ruled in December 2002 that she was ineligible for disability retirement, plaintiff Adrianne Pitts requested a return to active status as a police officer (from which she had been on leave without pay since August 2000). When defendants informed her in February 2003 that she would need to satisfy several conditions as part of her return to active status, she refused. Instead, she filed a petition for a writ of traditional mandamus directing defendants to return her to active status unconditionally. In July 2004, the trial court issued a judgment that denied the petition. We recently affirmed the judgment. (Pitts v. Najera (Dec. 5, 2005, C047833) [nonpub. opn.].)” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 855 (Pitts II), fn. omitted.)
Although differently captioned, we will refer to this opinion as Pitts I.
After the trial court’s ruling, which occurred in June 2004, “plaintiff’s attorney immediately sent a letter to defendant City of Sacramento asserting that she agreed to the terms of the city’s offer of February 2003. Defendant [Albert] Najera [the city’s then-chief of police] notified plaintiff that her refusal to accept the conditions in the February 2003 offer until that time amounted to a failure to return to work. He cited a line from the July 2004 judgment in which the court had asserted, ‘When [plaintiff] refused to report to work as instructed, [defendants] had no further duty toward returning her [to] employment.’ He thus denied her request for reinstatement.” (Pitts II, supra, 138 Cal.App.4th at p. 855.)
“Plaintiff then filed the present petition for a writ of traditional mandamus directing defendants to reinstate her as an employee. Defendants answered and filed a ‘demurrer’ to the petition on the ground of another action pending between the parties. (Code Civ. Proc., §§ 430.10, subd. (c), 1089, 1109.) The trial court concluded that the prior writ proceeding [in Pitts I] involved the same primary right as the present action and thus sustained the demurrer without leave to amend.” (Pitts II, supra, 138 Cal.App.4th at p. 855, fn. omitted.)
We reversed this procedural ruling in Pitts II. We found that “the trial court took too liberal a view of the primary right involved.” (Pitts II, supra, 138 Cal.App.4th at p. 856.) “[T]he primary right at issue [in Pitts I] was the nature of the conditions defendants could properly impose on the offer extended to her.” (Id. at p. 857.) The present petition, “by contrast . . . involve[s] the duty, if any, of defendants to respond to plaintiff’s belated acceptance of the February 2003 offer after litigation over its legality.” (Ibid.) We noted that the trial court’s discussion in Pitts I of the lack of any duty on the City’s part to give effect to the belatedly tendered acceptance of its reinstatement offer was premature because it exceeded the scope of the issues before the Pitts I court. (Id. at p. 858.) However, we cautioned that “[i]t may be that plaintiff ultimately is not entitled to judgment in her favor. But she is entitled to a judgment on the merits of her claims based on an exploration of all the pertinent facts.” (Ibid.)
Following our decision in Pitts II, plaintiff Pitts filed her points and authorities in support of her petition in February 2007. Although in the course of her arguments she cited to the clerk’s transcript filed with this court in Pitts II, she did not take any steps in the trial court to augment the exhibits to her petition with this material, nor did she introduce any other supporting evidence. Therefore, the only facts beyond any admitted allegations in the petition that were before the trial court were the February 2003 offer letter, the judgment in Pitts I, the purported June 2004 acceptance, the July 2004 rejection of the acceptance, and plaintiff’s July 2004 response to the rejection. The only material fact the admitted allegations add (beyond those noted already in our quotes from Pitts II) is that plaintiff Pitts and the City negotiated over the conditions of her reinstatement from March to December 2003 before she filed the Pitts I writ petition.
As she also did not at any point ask the trial court to take judicial notice of any material from Pitts I, we deny her footnoted request for judicial notice of the clerk’s and reporter’s transcripts in that appeal (People v. Preslie (1977) 70 Cal.App.3d 486, 493), the form of which is also procedurally defective (Cal. Rules of Court, rule 8.252(a)(1)), and which in any event cannot serve as a basis for proof of the contents of the documents in the previous appeal (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865 (Bach)). We have taken judicial notice of the opinion in Pitts I, which defendant City introduced in the trial court.
In connection with these negotiations, plaintiff Pitts refers to a July 2003 communication from a lower-level official in the City’s labor relations department that purported to be a summary of the discussions up to that point (without making any specific attributions of which party said what). This summary indicated a dispute over whether plaintiff Pitts had a permanent restriction that prevented her from performing essential functions of the police officer classification. As the contents of this letter were part of the trial court ruling in Pitts I and our opinion, we may take judicial notice of their truth. (Bach, supra, 207 Cal.App.3d at p. 865.) However, as we also noted, “this was a mere summary of discussions between the [City] official and the plaintiff’s counsel, and is not in any sense a final and binding refusal to return her to active duty on the basis of her shoulder injury (at which point a court could intercede).” (Pitts I, supra, C047833.)
The trial court found that plaintiff Pitts had interposed a counteroffer to the City’s offer of reinstatement, which amounted to a rejection of the offer that extinguished it. Alternatively, the court found that an unreasonable amount of time had passed after the City made the offer before plaintiff Pitts attempted to accept it, which her pursuit of litigation over the legality of the offer did not excuse.
Discussion
Plaintiff Pitts suggests that the trial court and the City are wrong in focusing on contractual principles, because the City was acting under a statutory obligation to return her to active service. She does not offer any authority for this proposition. We do not discern any reason why the ordinary principles of offer and acceptance do not have a role to play merely because the impetus derives from statute rather than the employer’s free will.
On the issue of the offer, plaintiff Pitts contends that the February 2003 letter does not expressly offer reinstatement or impose any time limit for her acceptance. The letter begins, “I understand that you have requested reinstatement as a Police Officer,” and concludes with the instruction to contact a captain “at your earliest convenience to arrange for your return to work.” In light of the statutory obligation to return her to active service, the letter cannot be construed as anything other than an offer of her former position with an implicit requirement that she act upon the offer as soon as possible. However, even if we ignore this implicit time limit, she was still required to respond within a reasonable time. (Davies v. Langin (1962) 203 Cal.App.2d 579, 584-585; Civ. Code, § 1587, subd. (2).)
She contends the letter was not a bona fide offer of her former position because during her negotiations with the City, the latter did not think she was physically capable of performing the essential functions of the position. As we have previously ruled, this evidence does not reflect the City’s formal and final response to any actual attempt to accept its outstanding offer. It is simply an untested hypothesis that was left outside the issues in Pitts I as a result of her choice to litigate first rather than accept the offer and then contest any impermissible restrictions on her return to active service. It was her burden to produce some form of affirmative evidence in support of her present petition about this alleged intransigence, something she has failed to do.
Citing the conditional nature of the offer, plaintiff Pitts claims it is a mere assumption that she could have started work before the satisfaction of the conditions. To the contrary, it is a reasonable interpretation of the offer that she would be put back on the payroll in her former position while she completed her testing; nothing in the letter expressly states that only after she satisfied the conditions should she contact the captain to arrange for her return to work. It is she who has failed once again to produce any affirmative evidence that the City would not have reinstated her on its payroll.
Having failed to convince us that the offer was for anything less than a return to active service, plaintiff Pitts disputes that either she rejected it with a counteroffer (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 185, p. 219), or it was revoked after a failure to accept it in a reasonable time. It is impossible to construe her demand for an unconditional return to active service as anything other than a counteroffer. But even if we were to construe this demand charitably as being only an invitation to the City to reconsider the terms of its offer, her initiation of the Pitts I writ proceedings to compel the City to accept her proposal was the clearest of rejections of the City’s existing offer. Although she contends her decision to litigate the issue was reasonable, she has never demonstrated that it was essential to preserve her rights. The offer did not include any waiver of her ability to resort to any administrative remedy (and any concomitant judicial remedy) to contest any condition as an impermissible restriction on her statutory rights after she accepted the offer. Therefore, even if her May 2003 letter did not reject the outstanding offer, the December 2003 litigation extinguished the City’s duty to respond to any acceptance she proffered after that point, regardless of whether the purported acceptance was made within a reasonable time.
While plaintiff Pitts claims it is a mere assumption on the part of the courts in the past proceedings that she had any such remedies, the skeletal record she produced in support of her writ does not include any affirmative evidence (from union officials or otherwise) that demonstrates this assumption is erroneous.
Finally, plaintiff Pitts contends that this “result is a deprivation of due process rights giving a public employee hearing rights in the face of termination and/or demotion from their [sic] position.” She does not bother to specify exactly which procedural rights are involved. Whatever they may be, her claim fails at the outset, because her predicament is the result of her own choice to refuse to accept the City’s offer. The City neither dismissed nor demoted her.
Since the City did not deprive plaintiff Pitts unlawfully of her position, this nullifies her claim for back pay and benefits. Moreover, she cannot establish arbitrary or capricious conduct on the City’s part to entitle her to an award of her legal fees (Gov. Code, § 800), even if that statute applied in the present case (which it does not (Ferris v. Los Rios Community College Dist. (1983) 146 Cal.App.3d 1, 11 [statute applies only where challenging a decision resulting from a mandatory administrative hearing])).
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P. J., BLEASE, J.