Robinson v. City of Chowchilla

Filed 10/27/06 Robinson v. City of Chowchilla CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge.

Hargrove & Costanzo and Neal E. Costanzo for Defendants and Appellants.

Bennett & Sharpe, Barry J. Bennett, Thomas M. Sharpe and Robert D. Hoppe for Plaintiff and Respondent.

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This is an appeal from a nonappealable partial judgment. Accordingly, we dismiss the appeal.

Facts and Procedural History

A. Overview.

Appellants city council and city administrator of the City of Chowchilla (the city) ended the city’s employment of respondent John Robinson as chief of police. Respondent sued appellants for breach of contract and wrongful termination; respondent included within the complaint a petition for writ of mandate seeking enforcement of his rights claimed under the Public Safety Officers Procedural Bill of Rights Act, Government Code section 3300 et seq. (hereafter, the Act). The court bifurcated trial of the petition for writ of mandate and the complaint. Trial on the petition has been held; there is nothing in the record before us stating that the trial on the complaint has occurred. After trial on the petition to the court sitting without a jury, the court granted in part the petition for writ of mandate. Appellants filed a petition in this court for writ relief; that petition was denied. Appellants then filed the present appeal.

B. Factual Allegations.

The parties agree respondent was employed as chief of police pursuant to a written contract for an initial three-year term. As relevant to the dispute between the parties, the contract provided: “This Agreement shall be in force and effect for a period of three (3) years after its date of execution and shall be automatically renewed for an additional three (3) year term unless one party gives notice of non-renewal to the other party at least six (6) months prior to the automatic extension dates.” In addition, the contract provided: “Nothing in this Agreement is intended to be in conflict with the Act and if there is an inconsistency, the Act shall supersede this Agreement.” The initial effective date of the employment contract was September 29, 1997, and the contract was automatically renewed for an additional three-year term.

At some point, appellant Nancy Red, as city administrator, delivered a letter dated March 26, 2003, to respondent, purporting to be a notice of nonrenewal for an additional term beginning September 29, 2003. According to respondent’s evidence, this letter was not delivered to him until June 6, 2003, well after the six-month notice period had expired. Appellants presented proof asserting the letter was delivered to respondent or left on his desk on the date indicated on the letter.

The parties agree there were no further negotiations between the parties. They agree that on September 5, 2003, appellant Red met with respondent and his union representative and told respondent to clean out his office and turn in his badge that day. They agree that on September 5, 2003, a new acting chief of police was appointed. Appellants contend that, since respondent was paid through September 29, 2003, he was not terminated as an employee nor removed as chief of police; instead, they contend, his contract simply expired.

C. The Writ of Mandate.

The Act provides that a chief of police may not be removed from that position without providing the chief of police “with written notice and the reason or reasons therefor and an opportunity for administrative appeal.” (Gov. Code, § 3304, subd. (c).) The Act also provides that “incompatibility of management styles or as a result of a change in administration[] shall be sufficient to constitute ‘reason or reasons.’” (Ibid.) “Nothing in this subdivision shall be construed to create a property interest, where one does not exist by rule or law, in the job of Chief of Police.” (Ibid.) The superior court has jurisdiction to remedy violations of the Act with “appropriate injunctive or other extraordinary relief” and “to prevent future violations of a like or similar nature” through injunctive relief. (Gov. Code, § 3309.5, subd. (d)(1).)

The petition for writ of mandate requested the court to issue a writ “directing [appellants] to perform their legal duties by reinstating Petitioner to his position of employment, by restoring to Petitioner all wages and benefits lost as a result of [appellants’] actions as described above, and by renewing the term of the Employment Agreement through September 27, 2006.”

After the trial on the petition for writ of mandate, the court issued a written statement of decision granting very limited relief. The court found appellants had breached their duty under the Act by removing respondent as chief of police without providing written notice of reasons and an administrative hearing. It directed appellants to provide to respondent written notice of removal and the reasons for removal, and an opportunity for administrative hearing before appellant city council. “All other claims raised by Petitioner are reserved by the Court for later resolution, upon the trial of Petitioner’s other causes of actions [sic], and Petitioner’s request for attorney’s fees is denied without prejudice to Petitioner’s right to reassert such claims.”

Appellants filed a petition for writ of mandate in this court and we take judicial notice of our files in that case, F048415. After receiving an informal response to the petition and the city’s reply, this court summarily denied the petition on September 1, 2005.

Meanwhile, on August 2, 2005, appellants filed a notice of appeal from the trial court’s writ of mandate. Respondent moved to dismiss the appeal because it was from a nonappealable interlocutory judgment. By order, we deferred consideration of the motion until the appeal was placed on calendar for consideration of the merits of the appeal.

Discussion

Appellants acknowledge that a judgment that does not dispose of all cause of action usually is not appealable, even if the judgment resolves all of the issues tried in one portion of a bifurcated proceeding. (See Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743 (Morehart).) This is known as the “one final judgment” rule. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 58, p. 113.) Appellants contend, however, that the present judgment is appealable under an exception to this rule. We disagree.

In Morehart, plaintiffs filed a combined petition for writ of mandate and complaint for “multiple kinds of relief.” (Morehart, supra, 7 Cal.4th at p. 731.) The trial court granted the petition for writ of mandate and ordered the defendant county to set aside its denial of the building permit for which plaintiffs had applied, apparently withholding adjudication of the remaining causes of action. In doing so, the trial court held unconstitutional the local ordinance on which the county relied in denying the permit. (Id. at pp. 731-732.) The Court of Appeal reversed, holding that the county had authority to deny the building permit. On petition for review, the Supreme Court held that “an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment have been ordered to be tried separately, or may be characterized as ‘separate and independent’ from those remaining.” (Id. at p. 743.)

Morehart expressly overruled a line of cases that had established an exception to the one final judgment rule for cases in which the partial judgment is issued on causes of action tried separately and involving issues “separate and independent” from the remaining causes of action. (Morehart, supra, 7 Cal.4th at pp. 743-744.) Not only did Morehart itself involve an appeal from the grant of a petition for writ of mandate,^[1] subsequent cases expressly recognized that the one final judgment rule applies to bar appeals from partial judgments determining writ issues and leaving unresolved other causes of action. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698; Nerhan v. Stinson Beach County Water Dist. (1994) 27 Cal.App.4th 536, 539.)

This body of case law notwithstanding, appellants contend there is a further exception to the one final judgment rule recognized in Sjoberg v. Hastorf (1948) 33 Cal.2d 116 that was not overruled by Morehart. In Sjoberg, the issue was whether an order denying a petition to compel arbitration filed by a defendant in a civil action was appealable. The court held that it was not. In dicta, the court stated: “An appeal is allowed if the order [that does not finally determine all the issues before the trial court] is a final judgment against a party in a collateral proceeding growing out of the action. It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him.” (Id. at p. 119.)

Appellants contend the present case meets these criteria. They claim the writ of mandate is collateral to the remaining issues and that the writ requires performance of an act by appellants.

Appellants correctly summarize the cases that define what orders are “collateral” for these purposes. Most saliently, the matter must be distinct and severable from the general subject of the litigation. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 561.) If the subject of the order is “‘important and essential to the correct determination of the main issue’” and is a “‘necessary step to that end,’” the order is not collateral. (Steen v. Fremont Cemetery Corp. (1992) 9 Cal.App.4th 1221, 1227.)

Appellants contend the writ is collateral because it finally determines all of the issues under the Act, while reserving only issues under the employment agreement. This is incorrect for two reasons. First, the court did not address in any way the primary relief requested in respondent’s petition for writ of mandate, namely, reinstatement and back pay. In not doing so, the court presumably intended to reserve jurisdiction to award such further relief under the Act as may be appropriate in light of the administrative record after compliance with the initial writ issued by the court. (See Henneberque v. City of Culver City (1985) 172 Cal.App.3d 837, 843; Doyle v. City of Chino (1981) 117 Cal.App.3d 673, 678.) Thus, the writ did not even decide all of the issues presented by the petition for writ of mandate, but is a “necessary step to that end.” (Steen v. Fremont Cemetery Corp., supra, 9 Cal.App.4th at p. 1227.)

Further, the proceedings before the city council are likely to have great relevance in the trial of the remaining issues. The occurrence of a proper administrative hearing will have a direct effect on the measure of damages available in the causes of action for breach of contract and wrongful termination. (See Doyle v. City of Chino, supra, 117 Cal.App.3d at p. 678.) If the hearing results in reinstatement of respondent, the issues in the other causes of action will be limited to such matters as attorney fees and (if not awarded in the hearing) back pay. If there is a procedurally correct affirmation of the decision to terminate employment, the result could provide a defense to any or all of the remaining causes of action, for example, by establishing to some degree that the city had good cause to terminate respondent under the employment contract, even if it was determined at trial that the nonrenewal letter was untimely and the contract had been renewed automatically.

Because the writ of mandate is not collateral to, or separate from and independent of, the remaining issues and causes of action to be determined, we need not address whether the writ directs action by appellants. “Where, as here, the order is neither final nor collateral, the fact that it directs payment of money or the performance of an act is immaterial.” (Steen v. Fremont Cemetery Corp., supra, 9 Cal.App.4th at p. 1229.)

On occasion, and in unusual circumstances, an appellate court will deem a premature appeal to be a petition for extraordinary relief and will reach the merits of the issue presented. (Olson v. Cory (1983) 35 Cal.3d 390, 400; Southern Pacific Land Co. v. Westlake Farms, Inc. (1987) 188 Cal.App.3d 807, 826.) This is not such a case. We already have summarily denied appellants’ previous petition for writ review of this same order. Failure to review the order at this time will not prejudice appellants: on any appeal from the final judgment in this case, appellants will be entitled to argue that the administrative hearing was not required by the Act. (See Muao v. Grosvenor Properties Ltd. (2002) 99 Cal.App.4th 1085, 1089 [dismissing appeal from order compelling arbitration].)

Disposition

The appeal is dismissed. Respondent is awarded costs on appeal.

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VARTABEDIAN, Acting P. J.

WE CONCUR:

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CORNELL, J.

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DAWSON, J.

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^[1] Since Morehart was an attempt to appeal from a writ directing the county to take action, we also reject appellants’ argument that the writ is essentially an appealable preliminary injunction. If appellants were correct, Morehart would be meaningless.