Filed 3/25/14 Johnson v. Co. of San Diego CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DARNELL JOHNSON, D063706
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2012-00099392-
CU-WT-CTL)
COUNTY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Randa
Trapp, Judge. Affirmed.
Darnell Johnson, in pro. per., for Plaintiff and Appellant.
Thomas E. Montgomery, County Counsel, and William H. Songer, Senior Deputy
County Counsel, for Defendant and Respondent.
INTRODUCTION
Darnell Johnson, an employee of the County of San Diego (the County), was
offered the option to resign or be terminated from his position as a building maintenance
engineer after he was convicted of a felony for possession of stolen property and
unlawful possession of firearms. He resigned. Johnson appeals a judgment after the
court sustained without leave to amend the County's demurrer to Johnson's second
amended complaint (SAC) for a writ of mandate in which Johnson asked the court to
direct the County to provide him with "an administrative hearing process." The court
ruled the County of San Diego Civil Service Rules (Civil Service Rules)1 do not provide
an administrative appeal for an employee who resigns. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
A
Johnson began working for the County in 2000 as a construction and service
worker and was later promoted to the position of building maintenance engineer in 2005.
1 Further rule references are to the Civil Service Rules.
2 In reviewing an order sustaining a demurrer, "[w]e treat the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or conclusions of fact
or law. [Citation.] We also consider matters which may be judicially noticed." (Serrano
v. Priest (1971) 5 Cal.3d 584, 591.) The trial court granted the County's unopposed
request for judicial notice of (1) an excerpt from the Charter of the County of San Diego
(Charter), (2) an excerpt from the Civil Service Rules, (3) a letter dated August 23, 2011
from Johnson's union to the County of San Diego Civil Service Commission
(Commission) and (4) a letter dated September 22, 2011 from Johnson's union to the
Commission. Since Johnson did not oppose the request for judicial notice below and on
appeal does not take issue with the propriety of the court's order granting judicial notice
of the letters, we consider them pursuant to Evidence Code sections 452, subdivision (h)
and 459, subdivision (a). (See Scott v. JPMorgan Chase Bank (2013) 214 Cal.App.4th
743, 753 [judicial notice of agreement is proper where plaintiff did not question
authenticity].) Accordingly, we derive the facts from the operative complaint and the
judicially noticed material.
2
Johnson pleaded no contest in 2003 to a charge of assault with a deadly weapon
and was convicted of a felony, which was later reduced to a misdemeanor for probation
compliance. He was arrested in a County building and he disclosed the conviction to his
supervisor. The County took no disciplinary action against him at that time.
In May 2011, Johnson pleaded guilty to felony charges of possession of stolen
property and unlawful possession of firearms, which included two pistols and a .22-
caliber rifle.
After disclosing the new criminal conviction to his employer, Johnson alleges his
supervisor "threatened" him to sign a written resignation. He was told, "his only options
were to sign the resignation or suffer immediate termination." He also alleges his
supervisor said if he did not sign the written resignation, the supervisor would "see to it"
Johnson "never obtain[ed] another job again anywhere." Johnson signed the resignation,
but alleges he did so "under duress."
A few days later, Johnson submitted a written request to rescind his resignation.
He also filed grievance papers with his union.
The union sent a letter on Johnson's behalf to the Commission requesting an
investigation, under the Civil Service Rules, of due process violations surrounding the
issuance and signing of the letter of resignation. He requested an investigation and
reinstatement to his position. He also asserted, "any actions against him should be
conducted in accordance with due process rules . . . ."
A month later, however, the union sent a second letter withdrawing the request,
stating Johnson did not wish to pursue the case. Johnson alleges "[i]n spite of the efforts
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of the [Service Employees International Union]," the County did not approve rescission
of his resignation.
B
Nine months after withdrawing the request for investigation, Johnson sued the
County asserting in his original complaint causes of action for wrongful termination,
fraud and coercion. He then filed a first amended complaint (FAC) alleging causes of
action for injunctive relief to rescind the "false contract for resignation," unpaid wages,
fraudulent conveyance, extortion of signature and writ of mandate under Code of Civil
Procedure section 1085 asking the court to compel the County to provide "an
administrative hearing process."
The County demurred to all causes of action in the FAC. The County argued the
cause of action for writ of mandate was uncertain and failed to sufficiently state a cause
of action for writ relief, but leave to amend this cause of action should be granted. The
County argued the FAC did not plead the County denied Johnson's request for a service it
had a legal duty to provide. It suggested Johnson might argue the County had a
ministerial duty to rescind his resignation upon his request and the failure to do so was
arbitrary, capricious or entirely lacking in evidentiary support. It also speculated that
Johnson could argue the County had a ministerial duty to grant him a hearing afforded by
rule VII and that the failure to do so was arbitrary, capricious or entirely lacking in
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evidentiary support. The County argued it was extremely unlikely that Johnson could
plead a viable writ petition, but stated he should be granted leave to amend.3
In opposition, Johnson argued he was entitled to a hearing and that one was not
provided. He further argued it is not his "obligation to write a hearing process for [the
County]."
The court sustained the County's demurrer to the FAC as to all causes of action,
but granted leave to amend for the writ of mandate. The order stated the cause of action
for writ of mandate failed because Johnson had not alleged facts showing "(1) a clear,
present duty upon the part of the respondent and (2) a clear, present, and beneficial right
in the petitioner to the performance of that duty."
Johnson's SAC asserted a sole cause of action for writ of mandate with factual
allegations identical to those alleged in the prior complaints. The County again demurred
arguing Johnson cannot state a claim for a traditional writ of mandate under Code of
Civil Procedure section 1085 because the County has no duty to offer an administrative
hearing to an employee who resigns. The County argued the Civil Service Rules only
provide a right for an employee who has been "reduced in compensation, suspended,
demoted or removed" to appeal to the Commission.
3 On appeal, Johnson challenges only the denial of his writ of mandate seeking an
administrative hearing. Therefore, we limit our discussion of the procedural background
to that issue.
5
After hearing oral argument, the court sustained the demurrer without leave to
amend, finding the Civil Service Rules do not provide an appeal right for an employee
who has resigned.
DISCUSSION
I
Standard of Review
On appeal from a judgment after a demurrer is sustained without leave to amend,
we review the order de novo and exercise our independent judgment on whether the
complaint states a cause of action as a matter of law. (Lincoln Property Co., N.C., Inc. v.
Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 911.) We assume the truth of all
properly pleaded facts, as well as facts inferred from the pleadings and those of which
judicial notice may be taken. (Howard Jarvis Taxpayers Assn. v. City of La Habra
(2001) 25 Cal.4th 809, 814.) Further, "we give the complaint a reasonable interpretation,
reading it in context." (Campbell v. Regents of University of California (2005) 35 Cal.4th
311, 320.) " ' "[W]e may affirm a trial court judgment on any basis presented by the
record whether or not relied upon by the trial court." ' " (Maystruk v. Infinity Ins. Co.
(2009) 175 Cal.App.4th 881, 887.)
"If we see a reasonable possibility that the plaintiff could cure the defect by
amendment, then we conclude that the trial court abused its discretion in denying leave to
amend. If we determine otherwise, then we conclude it did not." (Campbell v. Regents
of University of California, supra, 35 Cal.4th at p. 320.) " 'The burden of proving such
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reasonable possibility is squarely on the plaintiff.' " (Maxton v. Western States Metals
(2012) 203 Cal.App.4th 81, 95.)
We review due process challenges to procedural matters de novo because they
present pure questions of law. (Brown v. City of Los Angeles (2002) 102 Cal.App.4th
155, 168.) Since the same rules of construction and interpretation that apply to statutes
govern the construction and interpretation of rules and regulations of administrative
agencies, we apply a de novo standard of review for interpretation of civil service rules.
(Head v. Civil Service Com. (1996) 50 Cal.App.4th 240, 243-244.)
II
A
Requirements for Writ of Mandate
"A court may issue a writ of mandate to compel a public agency or officer to
perform a mandatory duty. (Code Civ. Proc., § 1085; City of Dinuba v. County of Tulare
(2007) 41 Cal.4th 859, 868.) A writ of mandate is available only if the respondent has a
clear, present, and usually ministerial duty and the petitioner has a clear, present, and
beneficial interest in the performance of that duty." (City of Fillmore v. Board of
Equalization (2011) 194 Cal.App.4th 716, 734.)
A ministerial duty is an act that must be performed in a prescribed manner
according to the mandate of legal authority without the exercise of discretion or
judgment. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29
Cal.4th 911, 916.) "While mandamus will not lie to control an exercise of discretion, i.e.
to compel an official to exercise discretion in a particular manner, mandamus may issue
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to compel an official both to exercise his or her discretion (if he or she is required by law
to do so) and to exercise it under a proper interpretation of the applicable law."
(California Assn. for Health Services at Home v. State Dept. of Health Care Services
(2012) 204 Cal.App.4th 676, 683.)
B
Johnson is Not Entitled to Writ of Mandate
Johnson argues the court erred in denying his request for a writ of mandate
because he resigned. He asserts there "must be a process by which an employee may
challenge the signature on a resignation, whether as a forgery, or as the product of
wrongful or illegal duress." To evaluate Johnson's claim, we review the Charter and the
Civil Service Rules.
Employment with the County of San Diego exists solely by virtue of a personnel
system created by the Charter. (Charter, art. IX, § 900.)4 Although the personnel
director administers the personnel system, the Commission shares broad plenary
responsibility for protecting the merit basis of that system. (§ 904.)
County employment is divided into classified and unclassified services. (§ 908.)
The Commission is responsible for all aspects of County employment in the classified
service, including review and modification of civil service rules. (§§ 904.3, 910, 910.1.)
The Commission's investigative power extends to "the conduct and operations of
all departments," and in this regard, "the Commission may make any necessary orders,
4 All further section references are to the article IX of the Charter unless otherwise
indicated.
8
including, but not limited to, back pay and classification adjustments, to carry out the
provisions of the Charter and the Civil Service Rules." (§§ 907, 907.1.) It also serves as
the "administrative appeals body for the County in personnel matters authorized by the
[Charter]." (Rule I, § 1.1.1(b).)
The Civil Service Rules provide an appeal and a hearing process for classified
employees who are "reduced in compensation, suspended, demoted or removed."
(Rule VII, §§ 7.4, 7.6.) Removal is defined as the "involuntary termination of an
employee from a position and from the classified service in accordance with Rule VII."
(Rule XVII, § 17.1.1.)
If an employee wishes to resign in good standing, the rules require the employee
to file a written resignation. An employee may rescind a written resignation by
submitting a request to rescind in writing prior to the last day of employment, which the
director may grant or deny after investigation. (Rule XIV, § 14.2.1.) Resignation is
defined as "[v]oluntary separation of an employee from County Service." (Rule XVII,
§ 17.1.1.)
Section 901 of the Charter requires the County to "hire, transfer, promote,
discipline or dismiss individuals on the basis of job related qualification, merit and equal
opportunity without regard to age, color, creed, disability, national origin, political
affiliation, race, religion, sex, sexual orientation or any other non-job related factor,
including but not limited to retaliation based on protected activity." (Rule VI, § 6.1.1.)
An employee who claims he or she has been subjected to discrimination or other
mistreatment may file a complaint within 60 days of the alleged improper practice.
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(Rule VI, § 6.1.2.) Thereafter, the Office of Internal Affairs (OIA) must investigate and,
if it finds probable cause for violation of the Charter, and the remedy requested is not
within the jurisdiction of the OIA or the Chief Administrative Office, the Commission
must conduct a hearing in accordance with prescribed rules and render a decision.
(Rule VI, §§ 6.1.3-6.1.13.)
In addition to these provisions, the rules provide that the Commission "may in its
discretion upon the request of any individual or on its own initiative, investigate, either as
a group or as individuals, the conduct and operations of any department." (Rule XI,
§ 11.1.) The Commission is granted authority to administer oaths, subpoena witnesses
and materials and to made findings and a proposed decision, which include any necessary
orders. (Rule XI, §§ 11.1-11.5.)
After consideration of the Civil Service Rules as a whole, we conclude the court
did not err in determining the Civil Service Rules do not require the County to provide a
hearing to an employee who resigned.
Johnson received a felony conviction for possession of stolen property and
unlawful possession of firearms. Johnson admits the County may remove an employee
for theft. According to the rules, Johnson's conviction provided sufficient cause for
discipline, including removal. (See rule VII, § 7.2, subd. (d) [employee guilty of
dishonesty], subd. (k) [employee convicted of a criminal offense involving moral
turpitude], subd. (r) [employee guilty of a failure of good behavior], & subd. (s)
[employee guilty of any act incompatible with or inimical to public service].)
10
After learning about the conviction, the County offered Johnson the option to
resign or to be removed. If Johnson had chosen removal, the Civil Service Rules would
have provided him with the attendant administrative processes, including the right to a
hearing and judicial review pursuant to Code of Civil Procedure section 1094.5. (Rule
VII, §§ 7.2.1-7.13.) He did not choose this option. Instead, he resigned. As pointed out
by the County, employees often choose to resign to avoid the stigma attached to being
fired. This is a reasonable choice.
Assuming, as we must, that Johnson's resignation was obtained under undue
pressure, Johnson had alternative remedies as provided by the Civil Service Rules. While
the rules do not provide a mandatory administrative hearing process to challenge a
resignation, they allow an employee who resigns to submit a request to rescind a written
resignation. (Rule XIV, § 14.2.1.) Johnson submitted a request for rescission, but it was
not accepted. The County is not required to accept the request to rescind and the rules do
not require a hearing regarding rescission of a resignation.
Another option available to employees who feel they have been improperly
disciplined or retaliated against is to file a complaint and request an investigation under
either rule VI or rule XI. Johnson initiated a complaint and requested an investigation
under rule XI regarding the circumstances surrounding his resignation. He asserted the
County circumvented the process of instituting discipline under the rules and violated the
County's own policies. However, Johnson then withdrew his complaint. An employee
who does not avail himself of established remedies does not establish a violation of due
process. (See Wilson v. State Bar of California (1958) 50 Cal.2d 509, 510 [petitioner
11
does not establish a violation of due process when he declined to avail himself of the
opportunity to be heard and to present evidence]; Garamendi v. Golden Eagle Ins. Co.
(2004) 116 Cal.App.4th 694, 706, fn. 4 ["Due process demands only that litigants have
the opportunity to be heard, not that they avail themselves of that opportunity"].)
Under the circumstances, we cannot conclude the County failed to perform a
ministerial duty it was required by law to perform. Johnson failed to allege a clear,
present, and ministerial duty on the part of the County to provide him with a hearing to
challenge his resignation. Nor has Johnson alleged he has a clear, present, and beneficial
interest in the performance of any such duty. (Excelsior College v. Board of Registered
Nursing (2006) 136 Cal.App.4th 1218, 1237-1238.)
Further, Johnson's opening brief does not show a reasonable possibility he could
amend his complaint to allege facts entitling him to a writ of mandate. On appeal, a
plaintiff must show in what manner the complaint can be amended and how the
amendment will change the legal effect of the pleading. " 'The assertion of an abstract
right to amend does not satisfy this burden.' [Citation.] The plaintiff must clearly and
specifically state 'the legal basis for amendment, i.e., the elements of the cause of action,'
as well as the 'factual allegations that sufficiently state all required elements of that cause
of action.' " (Maxton, supra, 203 Cal.App.4th at p. 95.) No such showing is made here.
12
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.
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