Opinion
A148511
09-28-2017
PETER QUIAMBAO, Plaintiff and Appellant, v. SAN FRANCISCO MUNICIPAL TRANSPORTATION AGENCY et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. CPF 15-514458)
I.
INTRODUCTION
Appellant Peter Quiambao was discharged from his position as a transit operator and challenged his dismissal pursuant to the grievance procedures authorized by his employer, the San Francisco Municipal Transportation Agency (Muni), and his union. The union ultimately sought binding private arbitration, which affirmed appellant's dismissal. Appellant filed both a writ of mandamus and a motion to vacate the arbitration award before the trial court. On appeal, appellant claims he lacked standing to appeal the arbitration award and it was improperly denied on the merits. He further claims the trial court erred in sustaining Muni's demurrer to the writ of mandamus.
We conclude the trial court properly found the writ of mandamus was not the appropriate procedure by which to appeal a nonjudicial arbitration. We further conclude that even if appellant lacked standing to file the motion to vacate the arbitration award, he forfeited any claim of error and, in any event, his motion lacked merit. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was a transit operator for Muni. He was discharged in 2015 for violations of the Muni rule book. His most recent violation occurred on April 20, 2015, when appellant's trolley "dewired." Appellant did not follow Muni procedure and immediately stop his trolley and properly rack the overhead poles when they derailed causing the overhead line to come down and hit a car. Appellant had a lengthy disciplinary history with a prior incident for failing to rack the overhead poles. Appellant's discharge letter stated: "Due to an extensive record of safety violations, conduct issues including rudeness to patrons and altercations with other operators, as well as schedule violations, your overall record is unsatisfactory. You have been suspended numerous times. Therefore, the recommended discipline is dismissal."
Muni held a Skelly hearing on June 12, 2015, with appellant and his union representative and recommended appellant be discharged.
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215 [an employee is entitled to "notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline"].
Appellant's union, the Transport Workers Union Local 250-A, challenged his discharge pursuant to the grievance procedure in the parties' Memorandum of Understanding (MOU). On June 24, 2015, Muni held a grievance hearing where appellant and his union representative were present. The hearing officer concluded that appellant's work record was "very poor." "He has received numerous caution and reinstructions and suspensions for cell phone violations, running stop signs, bad conduct with fellow employees, speeding, scheduling, no call-no shows, and other dewirings." The hearing officer found after reviewing the evidence that Muni had "just cause for discipline," denied the grievance and upheld the termination.
The union then sought binding arbitration pursuant to the MOU. The arbitrator found Muni had just cause to dismiss appellant. Appellant had "accumulated an extensive disciplinary record involving a broad range of performance and conduct deficiencies." The arbitrator found
"[I]n the preceding calendar year (2014) alone, he received a warning for failing to stop for a stop sign, a 3-day suspension for handling his cell phone at a bus zone, a 15-day suspension for a profane altercation with a passenger, and a low-level discipline in January, 2014 for a dewirement in which [appellant] proceeded through an intersection at a high rate of speed and failed to rack his poles. The foregoing lists only a portion of [appellant's] pertinent discipline."
The arbitrator outlined the current April 2015 derailment incident, which caused 130 feet of overhead wire to fall and hit a car. Appellant was charged with violations of Rules 8.9 (positioning trolleys) and 2.13.1 (inattention to duty) of the San Francisco Municipal Railway Rule Book. The arbitrator concluded that Muni proved appellant failed to rack his poles, in violation of the rules. This was appellant's second disciplinary action for failing to rack his poles within a 16-month period. The arbitrator found that, given the "unusual number of disciplinary actions" and the prior incident for failing to rack his poles along with substandard work performance, Muni's efforts to correct appellant's work deficiencies were not effective. "Based on his extensive disciplinary record and this latest proven offense, the penalty [of] dismissal was reasonable and warranted based on the facts presented herein."
Appellant's Writ Petition and Motion to Vacate the Arbitration Award
On August 31, 2015, appellant filed a writ petition pursuant to Code of Civil Procedure sections 1085 and 1094.5 seeking to overturn the arbitration award. The petition requested the court order Muni and the City of San Francisco to reverse the decision terminating appellant's employment and reinstate him. Appellant filed an amended petition on November 9, 2015. On that same date, appellant filed a motion to have the arbitration award vacated pursuant to sections 1285-1287.6 et seq. Appellant filed an amended motion on December 11, 2015.
All further undesignated statutory references are to the Code of Civil Procedure unless otherwise identified. --------
In his motion to vacate the arbitration award, appellant argued that the award was procured by corruption, fraud and other undue means. He alleged misconduct by the arbitrator and that the arbitrator refused to hear evidence material to the controversy.
Respondent filed a demurrer to dismiss the writ. Respondent argued appellant agreed to participate in binding arbitration and could not challenge the nonjudicial arbitration decision under sections 1094.5 and 1085. The only available review was pursuant to section 1286.6.
On March 1, 2016, the trial court held a hearing on the demurrer. The trial court stated: "I don't really get it. You're seeking to vacate an arbitration award. We have a statutory scheme in place. Your client is the beneficiary of the union's advocacy. It's required as part of the agreement. [¶] . . . [T]here's no government or decider . . . which an order or writ can be issued directing them to do something different." The court found that appellant's arguments all challenged the findings and conclusions of a neutral, private arbitrator, which provided no basis for relief by way of a writ of mandamus.
Appellant argued that he filed the writ because he lacked standing to file a motion to vacate the arbitration award. The court responded: "I'm conferring standing on him allowing him to do a petition to vacate. The City says he can do a petition to vacate. If this is in error, it's invited error . . . and it can't be changed because of judicial estoppel." Muni's counsel agreed. No objection was made by appellant's counsel. The court sustained the demurrer but permitted appellant to proceed with his claim under section 1286.2.
On April 18, 2015, the trial court held a hearing on appellant's motion to vacate the arbitration award. Appellant argued that the arbitrator exceeded his powers in making the award. He contended that under the MOU, the arbitrator could not consider discipline that happened more than year before the current incident. The court reviewed the MOU and found no such limitation. Appellant argued that the arbitrator did not properly consider whether the accident was minor and failed to consider the evidence surrounding the event. The court disagreed, and stated that Muni was focused on the rule violation, not the circumstances of the accident. It noted that the arbitrator's role was not to evaluate the accident, but to look at the rule violations.
The trial court denied appellant's motion to vacate the arbitration award. The court found that appellant had not shown any grounds under section 1286.2 to vacate the award. The court concluded: "The award itself shows that the arbitrator did not refuse to consider the July 27, 2015 email or Mr. Quiambao's argument that the April 20, 2015 incident was an accident. The arbitrator concluded that whether an accident occurred was not material to the controversy because such a finding did not 'preclude a separate finding that [appellant] committed one or more rule violations that warrant[ed] discipline.' Even if the arbitrator's reasoning was incorrect, an arbitration award cannot be vacated for legal or factual error."
The court found appellant's other arguments lacked merit. He failed to cite a provision in the MOU that precluded consideration of disciple outside the preceding 12-month period, and even if it was error to consider other discipline, it was not a basis to vacate the award.
III.
DISCUSSION
A. Appellant's Standing Before the Trial Court
In a somewhat puzzling argument, appellant contests his own standing to challenge the arbitration award. He contends that the trial court erred in granting him standing and in hearing the motion to vacate.
Section 1285 provides that "[a]ny party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award." A party to the arbitration is defined as a party: (1) who seeks to arbitrate a controversy pursuant to the agreement; (2) against whom such arbitration is sought pursuant to the agreement; or (3) who is made a party to such arbitration by order of the neutral arbitrator upon such party's application, upon the application of any other party to the arbitration or upon the neutral arbitrator's own determination. (§ 1280, subd. (e).)
In Melander v. Hughes Aircraft Co. (1987) 194 Cal.App.3d 542 (Melander), the court held that an employee did not have standing to appeal an arbitration award where the union acted on his behalf. "We conclude that, when an employee grievance is arbitrated under the terms of a collective bargaining agreement (CBA) between an employer and a union, the individual employee does not have standing to petition to vacate the award unless (1) the CBA contains a provision expressly giving employees themselves the right to submit disputes to arbitration, or (2) the arbitrator has made the employee a party to the arbitration under Code of Civil Procedure section 1280, subdivision (e)." (Id. at pp. 543-544, fn. omitted.)
Here, the MOU states: "The parties to the binding arbitration are [Muni] and the Transport Workers Union Local 250-A. Only the Transport Workers Union Local 250-A, not individual employee(s) may move a grievance (including a grievance regarding disciplinary action) to [arbitration]." It lists the employee's rights: (1) to be represented by counsel or the union; (2) to testify at the arbitration hearing; (3) present evidence and argue the case.
After appellant's grievance hearing, Muni sent a hearing notice regarding the arbitration to appellant, which stated: "At the hearing, you will have the opportunity to be heard and you have a right of Union representation at the hearing." The arbitrator's award lists the parties as follows: "SFMTA [San Francisco Municipal Transportation Agency] and TWU [Transit Workers Union] Local 250-A (Peter Quiambao dismissal)."
Based upon the language of the MOU, the parties to the arbitration are the union and Muni, but not appellant. The MOU specifically states that an individual employee may not seek arbitration. The arbitrator did not make appellant a party to the arbitration, listing the matter as Muni and the union.
Under Melander and section 1280, appellant was not a party to the arbitration and would not normally be able to seek to vacate the arbitration award. Appellant recognized he could not properly file a motion to vacate, but the trial court granted him standing. The court stated: "I'm conferring standing on [appellant] allowing him to do a petition to vacate. The City says he can do a petition to vacate. If this is in error, it's invited error . . . and it can't be changed because of judicial estoppel." Muni's counsel agreed.
Respondent argues appellant cannot "press rewind" and now contest his standing. Respondent relies on the doctrine of invited error: " '[W]hen a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error.' [Citation.]" (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1000 (TIG), quoting Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212.)
The doctrine of invited error, however, "rests on the purpose of the [estoppel] principle, which is to prevent a party from misleading the trial court and then profiting therefrom in the appellate court. [Citations.]" (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) The doctrine does not apply to bar assertion of the invited error on appeal where the party did not, in fact, mislead the trial court in any way. (Ibid.) Appellant did not mislead the trial court. The court provided appellant the opportunity to go forward with a motion to vacate the arbitration award, with Muni's agreement. No objection was made below to the court granting appellant standing to challenge the arbitration award on its merits by way of a motion to vacate. Under these circumstances, appellant has forfeited any claim of error on appeal.
" ' "[N]o procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." '. . ." (In re Sheena K. (2007) 40 Cal.4th 875, 880-881, quoting United States v. Olano (1993) 507 U.S. 725, 731.) The purpose of this rule is to encourage parties to bring errors to the attention of the trial court to allow them to be corrected. (In re Sheena K., at p. 881.)
Here, appellant was aware of his alleged lack of standing and raised the issue with the trial court. The trial court allowed appellant to proceed with his motion to vacate and ruled on the merits. A party who expressly agrees to an action taken by the trial court or in the trial proceedings cannot challenge that action on appeal. (Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779.)
We therefore consider appellant's claim on the merits as discussed below.
B. The Trial Court Properly Denied the Motion to Vacate the Arbitration Award
Nonjudicial arbitration is governed by the California Arbitration Act (§ 1280 et seq.), " 'a comprehensive, all-inclusive statutory scheme applicable to all written agreements to arbitrate disputes. [Citation.] Contractual arbitration awards, if valid, are presumed to be binding and final." (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1218, fn. omitted.) "Judicial intervention in the private arbitration process is strictly limited because the parties have agreed to 'bypass the judicial system' [citation] and submit their dispute to 'nonjudicial resolution by an independent third person or persons' [citation]. By agreeing to arbitration, parties anticipate a relatively speedy, inexpensive and final resolution, one that may be based on ' "broad principles of justice," ' rather than strictly the rule of law. [Citation.] Consequently, 'as a general rule courts will indulge every reasonable intendment to give effect to arbitration proceedings.' [Citation.]" (Ibid.)
An arbitrator's decision is by definition "binding and final" and subject to limited judicial review under sections 1286.2 and 1286.6. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) Under these provisions, "[c]ourts may not review either the merits of the controversy or the sufficiency of the evidence supporting the [arbitration] award. [Citation.]" (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943.)
The grounds to vacate an arbitration award include: (1) the award was procured by corruption, fraud or other undue means; (2) there was corruption in any of the arbitrators; (3) the rights of the party were substantially prejudiced by misconduct of a neutral arbitrator; (4) the arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; (5) the rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title; and (6) an arbitrator failed to disclose grounds for disqualification. (§ 1286.2.)
First, appellant argues that the Skelly decision was procured through corruption or other undue means because the charging officer engaged in discussions after the hearing with the hearing officer. Appellant, however, concedes "there is no evidence of actual misconduct." His argument, without any citations to the record, seems to be that the arbitrator should have refused to consider the disciplinary hearing at the arbitration. Appellant failed to raise this issue at the arbitration, and any impropriety at the Skelly hearing does not evidence the arbitration award was procured by corruption, fraud, or undue influence.
Appellant's next argument is that Muni withheld an email dated July 27, 2015, and the arbitrator failed to consider this email. Appellant neglects to explain how this email was material to his case and the trial court found the "award itself shows that the arbitrator did not refuse to consider the July 27, 2015 email." Indeed, the arbitration award discussed the email in detail.
In a related argument, appellant argues the arbitrator failed to consider evidence as to whether the dewiring was a minor accident as defined by the MOU. As the trial court found, the arbitrator did consider this evidence. The arbitrator concluded that the circumstances surrounding the accident "was not material" because the reason for appellant's termination was his rule violations. The trial court further found that even if this focus by the arbitrator was incorrect, an arbitration award cannot be vacated for legal or factual error.
Next, appellant argues that the arbitrator incorrectly considered his disciplinary history more than year before the incident. The trial court found appellant had failed to cite to anything in the MOU that precluded the arbitrator from considering disciple outside the preceding 12-month period. The court reviewed the MOU and found no such limitation. Additionally, even if it was improper for the arbitrator to consider his entire disciplinary history, this would not provide a basis to vacate the award. (See § 1286.2; Marsch v. Williams (1994) 23 Cal.App.4th 238, 243-244 ["a court may not vacate an award even if it contains a legal or factual error on its face which results in substantial injustice"].)
Finally, appellant contends the arbitrator exceeded his powers. This argument is based upon appellant's other arguments that the arbitrator failed to allow evidence and considered discipline outside the 12-month window. Finding these claims lack merit, we conclude appellant has presented no evidence that the arbitrator exceeded his powers.
Therefore, the trial court correctly rejected all of appellant's arguments, and properly denied his motion to vacate the arbitration award.
C. The Trial Court Properly Sustained the Demurrer to the Writ of Mandamus
Appellant argues the trial court erred in sustaining Muni's demurrer to his writ of mandamus.
In reviewing an order sustaining a demurrer, we independently determine whether the facts alleged in the challenged pleading, and judicially noticeable facts, state a cause of action. (Peterson v. Cellco Partnership (2008) 164 Cal .App.4th 1583, 1589.)
Appellant filed a writ petition pursuant to sections 1094.5 and 1085. He requested the trial court order Muni and the City of San Francisco to reverse the arbitrator's decision terminating him.
Section 1094.5 authorizes the issuance of a writ of mandate "for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer . . . ."
Section 1085 provides: "(a) A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, 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, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person." (§ 1094.5, subd. (a).)
Contrary to appellant's arguments, a writ of mandate is not a proper method to reverse a private or nonjudicial arbitration.
In Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106 (Zazueta), Zazueta appealed from a judgment sustaining a demurrer to his petition for writ of mandate pursuant to sections 1094.5 and Government Code section 3309.5. Zazueta's employment was governed by an MOU that required binding arbitration. (Zazueta, at p. 109.) The arbitrator upheld Zazueta's termination. (Ibid.) Zazueta petitioned for a writ of mandate seeking judicial review of the decision. (Id. at p. 110.) The court held that section 1094.5 was inapplicable because Zazueta did not pursue administrative remedies before the board of supervisors, but instead pursued binding arbitration pursuant to the MOU. (Zazueta, at p. 110.) Judicial review of arbitration awards is limited to section 1286. (Zazueta, at p. 110.)
Our Supreme Court has held "an award reached by an arbitrator pursuant to a contractual agreement to arbitrate is not subject to judicial review except on the grounds set forth in sections 1286.2 (to vacate) and 1286.6 (for correction)." (Moncharsh, supra, 3 Cal.4th at p. 33.) Appellant's only avenue of relief was to bring a claim against his union if he could demonstrate the arbitration award was a product of dishonesty, bad faith or discriminatory representation by the union. (See Lerma v. D'Arrigo Brothers Co. (1978) 77 Cal.App.3d 836, 843.)
Therefore, the trial court properly dismissed appellant's writ petition pursuant to section 1094 and Government Code section 3309.5.
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.