Filed 8/29/17 SBPEA Teamsters Local 1932 v. County of San Bernardino CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Dismissed.

Jean Rene Basle, County Counsel, and Kenneth C. Hardy, Deputy County Counsel, for Defendant and Appellant.

Hayes & Ortega, Dennis J. Hayes and Tracy J. Jones, for Plaintiffs and Respondents.

Plaintiff and respondent James Cook is a member of plaintiff and respondent SBPEA Teamsters Local 1932 (Local 1932) and until his termination was an employee of defendant and respondent County of San Bernardino (County). Defendant San Bernardino County Civil Service Commission (Commission) dismissed Cook’s appeal of his termination because his union representative failed to attend a mandatory prehearing conference.

Cook filed a petition for writ of mandate pursuant to Code of Civil Procedure section 1085, naming the County, its Board of Supervisors, and the Commission as parties, seeking to have his appeal reinstated. The trial court granted the petition, finding the dismissal to be “arbitrary and capricious,” and ordered the Commission to reinstate Cook’s appeal and proceed with the hearing.

The Commission did not appeal the trial court’s judgment, and therefore is not a party here. The County did appeal the trial court’s judgment, but nevertheless proceeded with Cook’s hearing before the Commission. As of the time of briefing in the present appeal, no final decision on the matter had been adopted by the Commission; a proposed decision by the hearing officer was expected in January 2017.

On appeal, the County contended that the trial court applied the wrong standard in determining whether the Commission’s dismissal of Cook’s appeal was arbitrary and capricious. Cook argued that the County waived its right to appeal the judgment by voluntarily complying with it and, in the alternative, that the trial court did not err.

On July 12, 2017, counsel for the County informed us that the matter had been settled, and that the parties would be filing a request for dismissal. On August 16, 2017, the request for dismissal was filed. By July 12, 2017, the appeal had already been assigned to chambers and, though a tentative opinion had not yet been circulated to the parties, a substantial amount of judicial resources had been invested in the case. Nevertheless, we grant the parties’ request and dismiss the appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Prior to his termination on December 8, 2014, Cook was employed by the County as a Mental Health Nurse Manager at the Arrowhead Regional Medical Center. He was a member of a Supervisory Nurses Unit exclusively represented by Local 1932 for purposes of collective bargaining pursuant to the Meyers-Milias-Brown Act (MMBA) (Gov. Code § 3500 et seq.).

Under the applicable Personnel Rules, Cook could be terminated only for cause, and was entitled to appeal his termination to the Commission. Local 1932 timely appealed Cook’s termination on his behalf.

The Personnel Rules provide that, prior to the hearing on a disciplinary appeal, the parties must attend a mandatory prehearing conference; one was scheduled regarding Cook’s appeal for May 5, 2015. Cook was to be represented at the conference by Local 1932 Labor Representative Beth Zendejas. Zendejas received multiple notices regarding the conference, and Zendejas confirmed that the scheduled date, time, and location was “fine.”

Nevertheless, on May 5, 2015, neither Cook nor Zendejas appeared. The Commission subsequently informed Zendejas by email and mail that Cook’s appeal would be “placed for dismissal” at a May 13, 2015 meeting of the Commission, and that her “attendance may be required to answer any questions the Commission may have.” The notices referred Zendejas to Rule II, Section 25 of the Personnel Rules (section 25), which provides that failure of the appellant or the appellant’s representative to appear at a mandatory prehearing conference, “absent good cause that is substantiated and communicated to the Commission secretary in advance of the prehearing conference time, shall be deemed an automatic withdrawal of the appeal and the [Commission] shall have no jurisdiction thereafter to proceed with the appeal.”

At the May 13, 2015 meeting, Zendejas appeared, and explained that her absence from the mandatory prehearing conference was the result of an administrative error. Despite her email confirmation regarding the noticed May 5, 2015 conference, it was accidentally placed on her calendar for May 6, 2015. She requested that the Commission continue the matter of the possible dismissal of Cook’s case, to allow a “grievance committee process” relating to the scope of the union’s representation of Cook to be completed. She confirmed that, although Local 1932 had not yet made a final decision whether it would represent Cook, she had intended to attend the mandatory prehearing conference “because of the timeframes,” and that her failure to attend was “strictly” the result of the erroneous calendar entry. The Commission agreed to the request for a continuance.

The Commission again took up the matter of Cook’s appeal on June 10, 2015. Zendejas appeared, and again confirmed that she did not attend the mandatory prehearing conference “strictly due to an error on the calendar when I input it. It was put in on the 6th not the 5th.” She elaborated that she had been in the office on the 5th, but was in a staff meeting, so she did not learn about a call to her office about the mandatory prehearing conference until an hour later. She argued that “due to the fact that this was a calendaring error . . . the employee should not be dinged and not allowed to go forward with arbitration.” The Commission ultimately disagreed, and voted to “automatically terminate the appeal because of failure to appear at the prehearing conference” pursuant to section 25.

Local 1932 and Cook filed their petition for writ of mandate on August 25, 2015. After discovery and briefing, the trial court held a hearing on the petition on March 11, 2016. During the hearing, the trial court commented as follows: “This Court, unfortunately, is very familiar with lawyers who fail to appear, and what this Court does in those circumstances and what I think most courts do is employ a series of escalating sanctions. What I usually do is, I would give the lawyer a warning the first time, and maybe the second time, the lawyer might be fined. [¶] But it’s a long road to having the Complaint dismissed or the Answer stricken, and yet, the administrative analogy here—that’s exactly what happened in this case. I think that’s arbitrary and capricious.”

After hearing the arguments of the parties, the trial court took the matter under submission, conceding it had been operating under the mistaken belief that there had been no hearing by the Commission regarding good cause, and indicating that it needed to read the transcripts before making a decision. Later on March 11, 2016, the trial court issued a minute order, ruling as follows: “The petition for writ of mandate is GRANTED. The Commission’s decision to dismiss the administrative disciplinary appeal, based on the labor representative’s failure to appear at a mandatory prehearing conference, was arbitrary and capricious. The Commission is ordered to reinstate petitioner’s appeal and to proceed with the appeal.” Judgment was entered on March 28, 2016.

The Commission did not appeal the trial court’s judgment. The County did appeal, filing its notice of appeal on April 14, 2016. While the appeal was pending before this court, however, the County proceeded with Cook’s disciplinary appeal before the Commission; a three-day hearing was conducted on August 30, 2016, September 1, 2016, and September 13, 2016. Although a proposed decision from the hearing officer was expected in January 2017, our record does not reflect what decision, if any, was reached.

II. REQUEST FOR DISMISSAL

After this case was fully briefed and assigned to chambers for preparation of a tentative opinion, and after a substantial amount of judicial resources had been invested in the preparation of a tentative opinion (although it had not yet been circulated to the parties), the parties advised the court that they had agreed to dismiss the appeal. A request for dismissal of appeal was filed August 16, 2017.

An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “On receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary. Here, because the resolution of this case is fact specific, we grant the request.

III. DISPOSITION

The County’s appeal is dismissed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.