Opinion
G044369 Super. Ct. No. 30-2010-00385233
08-19-2011
JORGE CASTANEDA, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.
John R. Cogorno for Plaintiff and Appellant. Liebert Cassidy Whitmore, J. Scott Tiedemann, and Jennifer M. Rosner for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Sherri Honer, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
John R. Cogorno for Plaintiff and Appellant.
Liebert Cassidy Whitmore, J. Scott Tiedemann, and Jennifer M. Rosner for Defendants and Respondents.
Plaintiff Jorge Castaneda, a former deputy juvenile correctional officer employed by defendant County of Orange, appeals from the superior court's denial of his petition for writ of mandate. Plaintiff filed his writ petition (1) after defendant terminated his employment in its probation department due to his refusal to answer questions during an administrative investigative interview, and (2) after an arbitrator issued a binding decision denying plaintiff's appeal of the termination and determining he was discharged for just cause. We affirm the court's judgment because plaintiff improperly filed his petition for writ of mandate after his termination was upheld in a binding arbitration.
FACTS
Facts from Law Enforcement Reports Dated July 1, 2008 and July 9, 2008
In June 2008, members of the Orange County Regional Narcotics Suppression Program searched the house where plaintiff lived with his stepfather (Cesar Hernandez) and four other relatives. Hernandez owned the house. During the search, Hernandez was at home, while plaintiff was in Mexico.
The search uncovered over $2 million dollars in cash in various parts of the house. Over $1 million dollars of the money was in a garage safe. Hernandez said the safe belonged to plaintiff and that he (Hernandez) did not know the combination to the lock. Documents found in the safe included plaintiff's tax return and Department of Motor Vehicles papers and Hernandez's tax return and escrow papers. The "money was forwarded to the Drug Enforcement Administration for asset forfeiture."
Hernandez told investigators that an "unknown acquaintance" had asked him to keep the money for a few days; Hernandez refused to reveal the acquaintance's name. Hernandez said the money did not belong to any resident of the house. He thought the money had come from the sale of illegal drugs. As to the money, Hernandez signed a disclaimer of ownership of property form.
Hernandez said he had given plaintiff around $40,000 to $50,000 of the cash for plaintiff's upcoming wedding and as a wedding present; Hernandez said plaintiff was under the false impression the money came from Hernandez's scrap metal business. Hernandez made the gift to plaintiff because he (Hernandez) did not think the owner of the money would notice the missing cash.
Numerous guns were found in the garage safe and in the upstairs bedroom; the guns consisted of three semi-automatic rifles, four semi-automatic pistols, one revolver, two bolt-action rifles, and one pump-action shotgun. Nine of the guns were found in the safe. Hernandez said that the guns in the safe belonged to plaintiff and that plaintiff had kept them when he got out of the military. Hernandez owned the other three guns.
A currency counting machine was found in a downstairs bedroom of the house. Plaintiff's employee badge and identification card were also seized.
The sheriff's department's report of the search listed the "[o]ffense" as violation of Health and Safety Code section 11370.6 ("[p]ossession of narcotic proceeds over" $100,000) and identified Hernandez as the "[s]uspect."
A subsequent report stated that, on July 9, 2008, deputy sheriff's investigators contacted plaintiff at the house. Plaintiff, saying he had retained an attorney, declined to talk about the items found in the search. An investigator asked plaintiff "if he wanted to disclaim ownership of the monies found at the residence"; plaintiff replied he wished to speak to his attorney before answering any questions.
Defendant's Actions
On July 10, 2008, defendant placed plaintiff on a leave of absence with pay.
On July 10, 2008, Supervising Probation Officers Christina Ronald and Barbara Talley conducted an administrative investigative interview with plaintiff. Plaintiff's attorney, John Cogorno, was present. Plaintiff was read his rights under Miranda v. Arizona (1966) 384 U.S. 436 and stated he understood those rights. Cogorno then stated plaintiff did not wish to give up those rights or to speak with the interviewers.
Ronald then read plaintiff his rights under Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 (Lybarger), as follows: "You may remain silent. If you choose to remain silent in response to a direct order to answer any job related question you may be disciplined up to and including discharge. Any response to direct questions in this interview may not be used against you in any criminal proceeding."
In Lybarger, the plaintiff "asserted, he could not be disciplined solely by reason of his exercise of his constitutional right to remain silent. Moreover, he insisted, he had been denied his statutory right to be advised of his constitutional rights where it was 'deemed' that criminal charges might be filed. [¶] Addressing the first issue, the majority made clear that Lybarger 'had neither a constitutional nor a statutory right to remain silent free of administrative sanction. As a matter of constitutional law, it is well established that a public employee has no absolute right to refuse to answer potentially incriminating questions posed by his employer. Instead, his self-incrimination rights are deemed adequately protected by precluding any use of his statements at a subsequent criminal proceeding. [Citation.]' [Citation.] [¶] On the other hand, the majority then held that Lybarger's interrogators had violated his statutory right to an advisement that he had a constitutional right to remain silent, subject to disciplinary action for doing so, but that his statements obtained under threat of discipline could not be used against him in a criminal prosecution. The omission of such an advisement, the majority concluded, was prejudicial, and Lybarger's dismissal for refusing to answer questions was therefore invalid." (Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704, 724.)
At plaintiff's request, Ronald repeated the Lybarger advisement. Ronald explained: "Basically, this is an administrative interview pertaining to questions with what we talked about initially [sic] and so this is for purposes of finding out things for the administrative side, not a criminal thing. So at this point you are being directed to answer questions."
Cogorno expressed concern that he and plaintiff had not been given any reports to review and did not "know the nature of this incident that we're here for." Ronald then gave Cogorno copies of two police reports dated July 1 and July 9, 2008, to review. Cogorno asked for a week or two to review the reports, but Ronald replied, "At this point the hearing was scheduled for today." Cogorno said that he and defendant had not had a chance "really to discuss this" and were "unprepared." Ronald gave defendant and Cogorno a "short break" to review the police reports. After a 35-minute break, Cogorno stated he and plaintiff had reviewed the documents. Cogorno stated defendant would answer job-related questions without waiving his constitutional rights and would exercise his constitutional rights as to other questions. Ronald replied defendant's refusal to answer questions would be considered insubordination and could result in disciplinary action, including termination. Later in the interview, Cogorno objected to questions about ownership of the safe and requested another break. After the interview resumed, Cogorno directed plaintiff to answer no questions about the safe and three of the guns. Plaintiff acknowledged receiving $10,000 from Hernandez, but refused to say whether he received an additional $30,000 to $40,000 from his stepfather. He refused to say whether he had knowledge of the money located throughout the house.
In August 2008, defendant discharged plaintiff based on his "repeated insubordination during an administrative investigative interview," when he "refused to answer questions . . . ."
Arbitration
Defendant advised plaintiff of his right to appeal the discharge pursuant to "Article IX, section 6.C of the 2007-2009 Probation Services Unit Memorandum of Understanding (MOU)." Under Article IX, section 6.C of the MOU, plaintiff was entitled to appeal his discharge "directly to arbitration." Article X, section 8.D, subsection (11) of the MOU provides, "The decision of the arbitrator shall be final and binding on all parties."
An arbitration hearing was held in April 2010. On May 26, 2010, the arbitrator issued an 18-page opinion and award denying plaintiff's appeal and determining he was discharged for just cause.
Plaintiff's Petition for Writ of Mandate
In June 2010, plaintiff petitioned the superior court for a writ of mandate, asking the court to set aside his discharge and order him reinstated. Defendant opposed the motion on the ground, inter alia, that an "arbitration award may only be vacated pursuant to Code of Civil Procedure section 1285, et seq."
The court ruled: "Assuming petitioner is not limited to filing a petition to vacate the arbitration award and the court may review the arbitration award under Code of Civil Procedure sections 1085 and/or 1094.5, the petition is denied."
DISCUSSION
Defendant contends plaintiff's "only means to challenge [the arbitration] decision and award was to file a petition pursuant to Code of Civil Procedure section 1285, et seq." Defendant is correct.
Plaintiff contends defendant's argument ignores "the issue of whether or not [his] Federal Constitutional rights were violated." Although not entirely clear, it appears plaintiff assumes the arbitrator could not validly decide federal constitutional issues. Plaintiff cites no legal authority or reasoned argument on this point; we deem his argument to be waived. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) Furthermore, plaintiff's failure to even mention the arbitration proceeding and award in his opening brief violates California Rules of Court, rule 8.204(a)(2)(C).
Nonjudicial arbitration "is governed by the California Arbitration Act ([Code Civ. Proc., ] § 1280 et seq.) (Arbitration Act), '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 (Toal).)
"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.'" (Toal, supra, 178 Cal.App.4th at p. 1218.)
"After arbitration has resulted in an award, the Arbitration Act permits a party to petition 'the court to confirm, correct or vacate the award.' ([Code Civ. Proc.,] § 1285.) The opposing party may respond to such a petition by requesting 'the court to dismiss the petition or to confirm, correct or vacate the award.' ([Code Civ. Proc.,] § 1285.2; see [Code Civ. Proc.,] § 1287.2.)" (Toal, supra, 178 Cal.App.4th at p. 1220.) "A court presented with such a petition or response is empowered only to confirm, correct, or vacate the award or to dismiss the proceeding. ([Code Civ. Proc.,] § 1286.)" (Ibid.)
In Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106 (Zazueta), a case that presents facts strikingly similar to the instant case, a public safety officer was terminated for violation of the County of San Benito's personnel rules. (Id. at p. 109.) The termination notice advised the officer he could appeal either to the board of supervisors or could arbitrate the matter under the provisions of an MOU between the county and the Deputy Sheriff's Association. (Ibid.)The officer elected to submit the matter to arbitration under a binding arbitration clause of the MOU. (Ibid.)Upon losing the arbitration, the officer filed a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5. The trial court sustained the county's demurrer without leave to amend. The Court of Appeal affirmed, holding that administrative mandate was not applicable. "Judicial review of arbitration awards is limited to Code of Civil Procedure section 1286 et seq." (Zazueta, at p. 110.)
Here, although the applicable MOU did not give plaintiff the option of appealing to the board of supervisors, he was nevertheless bound by the arbitration provisions of the MOU between the county and his bargaining unit. Those provisions set out a comprehensive and fairly elaborate procedure for the arbitration of disputes arising out of employee discipline. Importantly, the MOU plainly provides, "The decision of the arbitrator shall be final and binding on all parties." As in Zazueta, supra, 38 Cal.App.4th 106, plaintiff is foreclosed from seeking relief via administrative mandate.
Even if we were to treat plaintiff's petition for writ of mandate as a petition to vacate the arbitration award (which it is not), plaintiff's challenge would fail. Judicial review of arbitration awards is limited "to those cases in which there exists a statutory ground to vacate or correct the award." (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 28.) Plaintiff did not allege any statutory ground to vacate an arbitration award. Instead, he merely alleged that the arbitrator's decision was wrong for a number of reasons related to plaintiff's perception that the interrogation conducted by Supervising Probation Officers Ronald and Talley was unfair and violated his constitutional rights. But, as our high court has explained: "[W]ith narrow exceptions, an arbitrator's decision cannot be reviewed for errors of fact or law." (Id. at p. 11.) "[W]e recognize there is a risk that the arbitrator will make a mistake. That risk, however, is acceptable for two reasons. First, by voluntarily submitting to arbitration, the parties have agreed to bear that risk in return for a quick, inexpensive, and conclusive resolution to their dispute." (Ibid.) And "[i]t is well settled that 'arbitrators do not exceed their powers merely because they assign an erroneous reason for their decision.'" (Id. at p. 28.)
The statutory grounds to vacate an arbitration award are: "(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. [¶] (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives." (Code Civ. Proc., §1286.2.)
In sum, plaintiff's effort to cloak his challenge to an arbitrator's award with the language of a petition for writ of mandate fails.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.