Opinion
H035514
08-01-2011
MICHAEL SAMAK, Plaintiff and Appellant, v. SANTA CLARA VALLEY TRANSPORTATION AUTHORITY, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV124781)
Appellant Michael Samak asserts that he is appealing from a judgment of dismissal after an order sustaining a demurrer. He also challenges an order denying his petition to vacate and confirming an arbitration award. He contends: (1) a writ of mandate was the appropriate means to challenge his termination from employment with respondent Santa Clara Valley Transportation Authority; and (2) the trial court improperly denied his motion to vacate the arbitration award. We find no error and affirm.
I. Factual and Procedural Background
Appellant was a nonprobationary employee of respondent. In September 2006, respondent notified appellant that it proposed to terminate his employment and gave him the opportunity to respond to the recommended action. Following this pretermination hearing, appellant's employment was terminated. The parties then participated in arbitration proceedings pursuant to a collective bargaining agreement. In May 2007, a hearing was held before an arbitrator, who had been mutually selected by the parties. In November 2007, the arbitrator issued an opinion and award in which he concluded that respondent did not have just cause to terminate appellant, and ordered respondent to reinstate appellant to his prior, or a substantially equivalent, position, and to make appellant whole for any monetary losses resulting from his termination.
After the arbitrator's opinion was issued, respondent informed appellant that his position no longer existed and no comparable position was available. Respondent also failed to pay appellant back pay. The parties then referred the matter back to the arbitrator pursuant to their agreement that the arbitrator would have continuing jurisdiction in the event there were disputes regarding the opinion. In April 2008, another hearing was held to determine whether respondent had a position available for appellant or if there had been changed circumstances which precluded reinstatement, and to calculate an award of back pay. The arbitrator issued a supplemental opinion and award, and concluded: respondent had not violated the prior opinion by failing to offer reinstatement to appellant because his former position no longer existed; appellant remained entitled to return to employment with respondent if a comparable position became available; and appellant was entitled to be made whole for the period from September 28, 2006 through November 9, 2006 in the amount of $9,911.98 less taxes.
In October 2008, appellant filed a petition for writ of mandate in which he challenged the arbitrator's award. Respondent filed a demurrer to the petition on the ground that the only available remedy for appellant was a petition to vacate or correct the award pursuant to Code of Civil Procedure section 1285 et seq. In January 2009, the trial court sustained the demurrer with leave to amend.
All further statutory references are to the Code of Civil Procedure.
In February 2009, appellant filed an amended petition for writ of mandate and, alternatively, a petition to vacate the arbitration award. Respondent filed a demurrer. The trial court sustained the demurrer to the petition for writ of mandate without leave to amend, but overruled the demurrer to the petition to vacate the arbitration award. Following further briefing and a hearing, the trial court denied the petition to vacate and confirmed the arbitration award.
II. Discussion
A. Appealability
In his notice of appeal, appellant asserted that he was appealing from a judgment of dismissal after an order sustaining a demurrer as well as an order denying his petition to vacate and confirming the arbitration award. Since there is neither a judgment of dismissal nor a judgment confirming the arbitration award, we requested, and received, supplemental briefing on the issue of appealability.
The right to appeal is "wholly statutory." (Powers v. City of Richmond (1995) 10 Cal.4th 85, 109.) "[O]nce a petition to confirm, correct, or vacate is filed [under section 1286], the superior court has only four choices: It may (1) confirm the award, (2) correct the award and confirm it as corrected, (3) vacate the award, or (4) dismiss the proceedings." (Sunnyvale Unified School Dist. v. Jacobs (2009) 171 Cal.App.4th 168, 175.) "If the trial court which does not dismiss the petition also does not correct or vacate an arbitration award, it must confirm the award. Entry of judgment in conformity therewith is required (Code Civ. Proc., § 1287.4), resulting in an appealable judgment under . . . section 1294, subdivision (d)." (Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 9.)
Here, there is an order confirming the arbitration award. However, it appears that a judgment pursuant to section 1287.4 has never been entered. This court could dismiss the appeal, which would then result in entry of judgment followed by another appeal. However, in order to avoid further delay and to conserve judicial and private resources, we will treat the order as appealable. (Cal. Rules of Court, rule 8.104(d)(2); see also Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 527, fn. 13 [trial court order amended by appellate court to include dismissal of case].)
An order sustaining a demurrer is interlocutory, and thus not appealable. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) However, this order "is reviewable on appeal from the judgment." (Walker v. Los Angeles County Metropolitan Transport Authority (2005) 35 Cal.4th 15, 20.) Since we are treating the order confirming the arbitration award as appealable, the order sustaining the demurrer is also properly before this court.
B. Administrative Writ of Mandate
Appellant contends that mandate under section 1094.5 was the appropriate means to challenge the arbitrator's decision, thereby entitling him to de novo review by the trial court.
Section 1094.5 governs any inquiry "into the validity of any final administrative order or decision made as a 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 . . . ." (§ 1094.5, subd. (a).) When a fundamental right is at issue, such as the right of an employee to continued employment (Bixby v. Pierno (1971) 4 Cal.3d 130, 143), then the trial court exercises its independent judgment to determine whether the agency's findings are supported by the weight of the evidence. (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 32.)
However, section 1094.5 is not applicable to the present case. Here, though a pretermination or Skelly hearing was held, respondent has no board, tribunal, or officer empowered to adjudicate personnel issues. Instead, respondent and appellant's union had entered into a collective bargaining agreement that specified grievance procedures and provided for "final and binding" arbitration. Section 1280 et seq. applies to arbitration, which is distinct from proceedings that are subject to mandate. An arbitration involves "a third party decision maker, a final and binding decision, and a mechanism to assure a minimum level of impartiality with respect to rendering of that decision." (Cheng-Canindin v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 687-688.) Thus, arbitration can provide adequate due process to a public employee. (See Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 281.)
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 215 [an employee is entitled to "notice of the proposed action, the reasons therefore, 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 reliance on Lake v. Civil Service Commission (1975) 47 Cal.App.3d 224, Barber v. Long Beach Civil Service Com. (1996) 45 Cal.App.4th 652, Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, Los Angeles County Employees' Assn. v. Sanitation Dist. No. 2 (1979) 89 Cal.App.3d 294, McGill v. Regents of University of California (1996) 44 Cal.App.4th 1776, and Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224 is misplaced. In contrast to the present case, none of these cases involved a collective bargaining agreement that provided for binding arbitration.
Appellant also argues that the trial court erred in relying on Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106 (Zazueta). In Zazueta, the appellant brought a petition for writ of mandate seeking to overturn an arbitration decision upholding his termination of employment. (Id. at p. 109.) Zazueta held that the petitioner was not entitled to judicial review under section 1094.5. (Zazueta, at p. 110.) Appellant claims Zazueta is distinguishable because the petitioner in that case had a choice to submit his case for a hearing with the board of supervisors or submit the matter to arbitration. This distinction is not persuasive. In both the present case and Zazueta, the appellant sought to vacate an arbitration award by bringing a petition for writ of mandate under section 1094.5. As previously stated, review of an arbitration decision is governed by an entirely different statutory scheme.
C. Jurisdiction of Arbitrator
Section 1286.2 sets forth the exclusive grounds for vacating an arbitration award. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 28.) At issue, here, is whether the award may be vacated on the ground that "[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted." (§ 1286.2, subd. (a)(4).) "Under section 1286.2, subdivision (a)(4), an arbitrator exceeds his powers by acting without subject matter jurisdiction, deciding an issue that was not submitted to arbitration, arbitrarily remaking the contract, upholding an illegal contract, issuing an award that violates a well-defined public policy or statutory right, fashioning a remedy that is not rationally related to the contract, or selecting a remedy not authorized by law. [Citations.]" (Gravillis v. Coldwell Banker Residential Brokerage Co. (2010) 182 Cal.App.4th 503, 511 (Gravillis).) "When parties contract to resolve their disputes by private arbitration, their agreement ordinarily contemplates that the arbitrator will have the power to decide any question of contract interpretation, historical fact or general law necessary, in the arbitrator's understanding of the case, to reach a decision. [Citations.] Inherent in that power is the possibility the arbitrator may err in deciding some aspect of the case. Arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be vacated because of such error, for ' "[t]he arbitrator's resolution of these issues is what the parties bargained for in the arbitration agreement." ' [Citations.]" (Gueyfier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1184 (Gueyffier).)" 'In determining whether an arbitrator exceeded his powers, we review the trial court's decision de novo, but we must give substantial deference to the arbitrator's own assessment of his contractual authority. [Citations.]' " (O'Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1056, quoting Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 443-444.)
Appellant contends that the arbitrator exceeded his jurisdiction by improperly deciding whether appellant's back pay could be cut off prior to July 31, 2007.
The arbitrator summarized the issue as follows: "[T]here would be the issue of what, if any, amount of back pay Mr. Samak might otherwise be entitled to, as well as other benefits outlined in my award based on either his continued employment through January - July 31st, 2007, or until some point in the future that I might conclude is appropriate." (Italics added.) Appellant appears to be arguing that the arbitrator could only award back pay without a deduction for substitute earnings or mitigation of damages. However, the inclusion of the phrase "if any" allowed the arbitrator to conclude that appellant was not entitled to any back pay. This conclusion could only be reached if the issue of back pay included a determination as to whether appellant obtained other employment or failed to mitigate his damages by seeking substitute employment. Thus, the arbitrator did not exceed his jurisdiction by deciding that appellant was entitled to back pay only for the period between September 28 and November 9, 2006.
Appellant next contends that the arbitrator exceeded his jurisdiction by requiring that he mitigate his damages. He claims that neither the collective bargaining agreement nor the National Labor Relations Board (NLRB) standards imposed this requirement.
Section 10552.3 of the NLRB guidelines state in relevant part: "A discriminatee's decision to engage in self-employment should not be regarded as a failure to seek interim employment. In general, self-employment should be regarded as a reasonable effort to mitigate losses."
Here, the collective bargaining agreement did not place any restrictions on the arbitrator's authority to determine the amount of a back pay award. Given that a "discharged employee . . . generally has a duty to mitigate his damage by seeking other employment through the exercise of reasonable diligence (California School Employees Assn. v. Personnel Commission (1973) 30 Cal.App.3d 241, 246), this court cannot conclude that the arbitrator exceeded his jurisdiction by "arbitrarily remaking the contract or . . . fashioning a remedy that is not rationally related to the contract." (Gravillis, supra, 182 Cal.App.4th at p. 511.)
Nor was the arbitrator required to apply NLRB law to the present case. Though the arbitrator indicated to the parties in a letter prior to the hearing that it "would expect to generally follow the procedures of the NLRB which uses a quarterly period, i.e. three month periods, to determine lost income and/or benefits offset by interim earnings and/or benefits," he did not agree to apply the NLRB's guidelines regarding mitigation of damages. Thus, the arbitrator was authorized to decide any question of law necessary to the resolution of the case. (Gueyffier, supra, 43 Cal.4th at p. 1184.)
Even assuming the arbitrator was required to consider NLRB standards, he did rely on three NLRB cases (Glenn's Trucking Co., Inc. and United Mine Workers of America (2005) 344 NLRB 377; Moran Printing, Inc. and International Brotherhood of Teamsters, Local Union No. 5 (1999) 330 NLRB 376; EDP Medical Computer Systems, Inc. (1991) 302 NLRB 54) in reaching his decision on the issue of back pay. Any error by the arbitrator in interpreting NLRB standards is not grounds for vacating the arbitration award. (Gueyffier, supra, 43 Cal.4th at p. 1184.) Thus, appellant has failed to show that the arbitrator exceeded his jurisdiction by requiring that appellant mitigate his damages.
III. Disposition
The order is affirmed.
Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Duffy, J.