Opinion
G061552
04-18-2024
LORRAINE DAVIDSON, Plaintiff and Appellant, v. ORANGE COUNTY PROBATION DEPARTMENT, Defendant and Respondent.
Huarte Appeals and Anne M. Huarte for Plaintiff and Appellant. Leon J. Page, County Counsel, Laura D. Knapp and Carolyn M. Khouzam, Deputy County Counsel, for Defendant and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2020-01131841, John C. Gastelum, Judge. Affirmed. Respondent's request for judicial notice granted in part and denied in part.
Huarte Appeals and Anne M. Huarte for Plaintiff and Appellant.
Leon J. Page, County Counsel, Laura D. Knapp and Carolyn M. Khouzam, Deputy County Counsel, for Defendant and Respondent.
OPINION
GOODING, J.
For three years, appellant Lorraine Davidson, an employee of the Orange County Probation Department (Probation Department), secretly placed recording devices in her coworkers' offices. She periodically retrieved the recordings and listened to them outside the office. In November 2017, when the devices were discovered in two offices, the Orange County Sheriff's Department (OCSD) initiated a criminal investigation. In the course of that investigation, multiple Probation Department employees suggested Davidson might have placed the devices. When the OCSD interviewed Davidson as part of their investigation, she denied any knowledge of the devices.
Months later, during a separate, internal administrative investigation conducted by her employer, the Probation Department, Davidson admitted placing the devices and lying to the OCSD. She was discharged from the Probation Department for dishonesty, violation of law in placing the devices, unprofessional conduct, conduct unbecoming a peace officer, and bringing discredit to the Probation Department.
Davidson challenged the discharge as being without cause. The matter proceeded to binding arbitration, and the arbitrator found good cause for the discharge. Davidson then filed a petition for writ of mandate in superior court seeking to overturn the arbitration award. Davidson twice amended her petition after demurrers were sustained with leave to amend. After the superior court sustained the Probation Department's third demurrer-to Davidson's second amended petition-without leave to amend, the court entered judgment in favor of the Probation Department.
Davidson appeals the judgment, arguing her second amended petition sufficiently alleged the arbitration award was issued in excess of the arbitrator's power and was procured by corruption, fraud, or undue means. We find her arguments unpersuasive and affirm the judgment.
ALLEGATIONS OF THE SECOND AMENDED PETITION
Davidson was employed by the Probation Department for more than 25 years. For ten of those years, 2007 through 2017, she believed she was the subject of harassment, bullying, and manipulation by her coworkers. Specifically, she believed her coworkers made another employee "feel uncomfortable for being friends with" and "listening to" Davidson and warned the employee not to go into the field with Davidson. She also believed a coworker was "attempting to sabotage her work by giving her incomplete information and making it difficult for her to be able to file a report." In addition, she thought someone at work had "cut her windshield." In 2014, Davidson began surreptitiously placing recording devices in her coworkers' offices and recording their conversations, as she explained it, "to document and to have evidence of what was really going on."
In November 2017, recording devices were found in two of Davidson's coworkers' offices. On November 15, 2017, the OCSD initiated a criminal investigation into the matter. OCSD investigators interviewed several Probation Department employees, some of whom suggested Davidson might have placed the devices. Davidson was the last witness interviewed by the OCSD investigators. When asked, Davidson denied any knowledge of the recording devices.
Davidson was placed on administrative leave. In June 2018, nine months after her interview with the OCSD, the Probation Department conducted its own interview with Davidson as part of its internal administrative process related to her employment. Davidson admitted to the Probation Department interviewers she had lied when she told the OCSD investigators she had no knowledge of the devices. She admitted placing recording devices in at least 10 of her coworkers' offices between 2014 and 2017. She explained she felt it necessary to document "the ongoing manipulation and harassment [by a particular employee] and her little coven of friends against me." She acknowledged she retrieved the devices and listened to the recordings while she was outside of the office. Each device could hold between one and one and one-half workdays of recordings. In all, Davidson had saved more than one hundred days of recordings of her coworkers.
In her interview with the Probation Department investigators, Davidson admitted none of her coworkers knew she was putting the devices in their offices and that recording her coworkers was not legal "per the letter" of the law. She said she lied to the OCSD investigators because she was "a bit surprised" by the investigation and thought she "d[id]n't deserve to be . . . getting in trouble . . . at work, given what [she'd ] been through." She conceded, however, she had violated the Probation Department's trust by her conduct.
On August 24, 2018, the Probation Department gave Davidson written notice it intended to discharge her for the following reasons: (1) "Dishonesty"; (2) "Violation of Department policy and failure to abide by the law in surreptitiously recording co-workers"; (3) "Conduct unbecoming a peace officer"; (4) "Conducting [her]self in an unprofessional manner"; and (5) "Bringing discredit to the Probation Department." A Skelly hearing took place on September 18, 2018. At the outset of the hearing, Davidson was read her rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and advised that her responses to direct questions during the hearing could not be used against her in any criminal proceeding.
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly). Pursuant to Skelly, a civil service employee must be "given notice of proposed disciplinary action, the reasons for the action, a copy of the charges and the written materials upon which they are based, and an opportunity to respond either orally or in writing. [Citation.] A 'Skelly hearing' refers to the employee's opportunity to respond, and it has been described as an 'informal probable-cause-type proceeding.'" (Chaplin v. State Personnel Bd. (2020) 54 Cal.App.5th 1104, 1109, fn. 2.)
On September 21, 2018, Davidson was discharged by the Probation Department for the reasons enumerated in the August 24, 2018 notice.
Davidson challenged the discharge decision, alleging it was without cause. The matter proceeded to binding arbitration in August 2019. Davidson was represented at the arbitration by counsel provided to her by her union. In November 2019, the arbitrator issued an award finding good cause for the termination of Davidson's employment. Because the arbitrator determined Davidson's proven dishonesty was alone sufficient to support her discharge, it did not address the other grounds for discharge identified by the Probation Department in its written notice of discharge. In response to Davidson's assertion that she had been harassed on the job, the arbitrator found the claimed harassment, even if true, did not mitigate or justify her dishonesty.
In February 2020, Davidson filed a petition for writ of mandate in Orange County Superior Court against the Probation Department, asking for an order setting aside the discharge and restoring her to predischarge status with "full back compensation, status, and benefits." The Probation Department demurred to the petition. The trial court sustained the demurrer with leave to amend. Davidson filed a first amended petition, and the Probation Department's demurrer to it also was sustained with leave to amend. In May 2021, Davidson filed a second amended petition to vacate the arbitration award or for other appropriate writ. The Probation Department filed a third demurrer to the new pleading. This time, the demurrer was sustained without leave to amend, the matter was dismissed, and judgment was entered on the dismissal. This appeal is taken from the judgment.
Davidson's original petition sought a writ of mandate under Code of Civil Procedure section 1094.5. After the demurrer to that petition was sustained-in part on the ground that the "exclusive means of setting aside or vacating the arbitration award is pursuant to Code of Civil Procedure section 1286.2"-Davidson's first and second amended petitions asserted claims under section 1286.2 rather than section 1094.5.
DISCUSSION
We review an order sustaining a demurrer de novo, reading the petition as a whole and accepting all properly pleaded material facts as true, to determine whether the pleading sets forth facts sufficient to state a cause of action. (Lagrisola v. North American Financial Corp. (2023) 96 Cal.App.5th 1178, 1186.) We review an order denying leave to amend for abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Davidson's second amended petition sought to vacate the arbitration award. The finality of arbitration awards is "the rule rather than the exception," and review of such awards is extremely limited. (Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 277 (Round Valley).) The limited grounds for vacating an arbitration award are set forth in Code of Civil Procedure section 1286.2. Davidson's second amended petition invoked two of those grounds: Code of Civil Procedure section 1286.2, subdivision (a)(1), which allows an award to be set aside if it was "procured by corruption, fraud or other undue means," and subdivision (a)(4), which allows an award to be set aside if the arbitrator "exceeded" its powers. (Id., subds. (a)(1) &(4).) We conclude Davidson's second amended petition does not allege facts that support vacating the arbitration award on either ground and the trial court did not abuse its discretion by denying Davidson further leave to amend.
I. THE SECOND AMENDED PETITION DOES NOT SUFFICIENTLY ALLEGE THE ARBITRATION AWARD WAS PROCURED BY CORRUPTION, FRAUD, OR OTHER UNDUE MEANS
Davidson's second amended petition alleged the arbitration award was obtained by corruption, fraud, or other undue means in that (1) her counsel colluded with the Probation Department, (2) the Probation Department interfered with her ability to secure witnesses to attend the hearing, and (3) her counsel failed to present critical arguments and testimony at the arbitration hearing. None of her arguments is persuasive.
First, Davidson argues the arbitrator ruled against her because her counsel colluded with the Probation Department to "prevent witnesses from testifying, prevent Petitioner from making due process arguments that may have led to her reinstatement, and prevent those who did testify from har[m]ing the Department's reputation further." Davidson alleges her counsel, who was appointed to represent her by her union, was biased in favor of and "collu[ded]" with the Probation Department because the attorney that represented her works for a firm that, on occasion, represents public safety officers, including those employed by OCSD and the Probation Department. These allegations are not sufficient to support a request to set aside the arbitration award for fraud, corruption, or undue influence. Further, although the second amended petition alleges collusion, it does not allege any joint conduct by the Probation Department and counsel. It only identifies separate conduct by each.
Davidson filed a separate legal malpractice claim against her counsel, which has been stayed pending the outcome of this appeal. (case No. 30-2021-01201239.) Respondent's request for judicial notice asks that we take judicial notice of the ruling on the stay (exhibit B). That request is granted.
Second, Davidson alleges the arbitration award was procured by fraud, corruption, or undue influence because the Probation Department interfered with the appearance of witnesses at the arbitration hearing pursuant to Davidson's subpoenas. Davidson alleges the interference occurred when the Probation Department forwarded the subpoenas Davidson served on Probation Department employees to those employees with a cover e-mail that read, in part: "'The Orange County Probation Department is not requiring your attendance at the hearings.'"
The second amended petition identifies two subpoenaed witnesses who failed to appear at the hearing. It does not, however, allege either witness received the allegedly misleading e-mail. Further, the second amended petition does not explain what testimony Davidson expected to obtain from those witnesses or how their absence affected the arbitration award.
To have an arbitration award set aside for corruption, fraud, or other undue means, the party making the claim "must show they were prejudiced by the alleged corruption, fraud or undue means." (Comerica Bank v. Howsam (2012) 208 Cal.App.4th 790, 826.) Stated differently, "the moving party needs to demonstrate a nexus between the award and the alleged undue means used to attain it." (Pour Le Bebe, Inc. v. Guess? Inc., (2003) 112 Cal.App.4th 810, 833-834.) Davidson's second amended petition does not allege any nexus between the subpoenas issued to the two witnesses who failed to appear (or the witnesses' failure to appear pursuant to them) and the arbitration award.
Further, Davidson specifically raised this issue during the arbitration hearing, arguing the Probation Department's cover e-mail misled the witnesses into thinking they did not have to appear pursuant to the subpoenas. In response, the Probation Department argued the language simply (and truthfully) informed the witnesses their attendance was not requested or required by the Probation Department. The arbitrator rejected Davidson's argument, noting Davidson failed to present evidence the allegedly misleading e-mail was ever sent to these two witnesses. In addition, the arbitrator found the purportedly offending e-mail stated "only the truth: that the [Probation] Department was not compelling attendance. Whether these witnesses were unable, or chose not to attend, or did not respond to phone calls from [Davidson], cannot be imputed to the [Probation] Department ...." Finally, the arbitrator noted Davidson did not request a continuance of the arbitration hearing or otherwise take any action to enforce the subpoenas to compel the witnesses' attendance at the hearing. For these reasons, the arbitrator found Davidson had shown no prejudice by reason of the e-mail allegedly sent by the Probation Department to the subpoenaed employees.
Davidson also alleged the Probation Department "pressured and incentivized [one of the two witnesses who was subpoenaed but did not appear] not to testify by holding a high level position open for her for seven months and awarding it to her in exchange for her not testifying at the arbitration." In her briefing on appeal, Davidson argues the witness would have testified about the harassment and bullying of Davidson. Davidson can show no prejudice from the failure of this potential witness to testify, because, as noted below, the arbitrator concluded the alleged harassment of Davidson, even if true, did not excuse her dishonesty. Moreover, as the arbitrator found, Davidson took no steps to enforce her subpoenas against either of the nonappearing witnesses.
In effect, Davidson asks us to find the arbitrator wrongly decided the issue. But it has long been the rule that "'[n]either the merits of the controversy . . . nor the sufficiency of the evidence to support the arbitrator's award are matters for judicial review.'" (Morris v. Zuckerman (1968) 69 Cal.2d 686, 691.) "[C]ourts will not review the validity of the arbitrator's reasoning." (Moncharsh v. Heily &Blase (1992) 3 Cal.4th 1, 11 (Moncharsh).) Even if errors of law or fact appear on the face of the award and cause "substantial injustice" to a party, they generally are not reviewable. (Id. at p. 6.) Accordingly, the arbitrator's factual and legal findings that the e-mail allegedly sent by the Probation Department was not misleading and, in any event, did not prejudice Davidson are not subject to our review on appeal.
Third, Davidson's second amended petition alleges the arbitration award was the result of fraud, corruption or undue influence because Davidson's counsel did not argue, during the arbitration, that the OCSD improperly failed to advise Davidson of her rights under Miranda and the Public Safety Officers Procedural Bill of Rights Act (Gov. Code § 3300 et seq.) (POBRA) during the initial OCSD interview, in violation of her due process rights. As set forth in the arbitration award, however, Davidson's counsel made both arguments during the arbitration and the arbitrator rejected both of them. The arbitrator found the evidence did not support Davidson's argument she had a right to receive a Miranda warning or to be advised of her POBRA rights during the initial OCSD interview. For the reasons explained above, the arbitrator's legal and factual findings on this issue are not subject to review by this court.
The arbitration award was attached as exhibit 4 to the initial petition filed by Davidson. In reviewing an order sustaining a demurrer without leave to amend, the reviewing court can consider prior versions of the pleading and exhibits attached thereto. (Lagrisola v. North American Financial Corp., supra, 96 Cal.App.5th at p. 1186.)
Finally, Davidson alleges her counsel refused to subpoena or otherwise call to testify certain witnesses Davidson describes as "pivotal" to her harassment defense. But the arbitrator concluded Davidson's admitted dishonesty was by itself sufficient to justify the discharge and that the claimed harassment, even if true, could not justify or excuse Davidson's dishonesty. No matter how many witnesses Davidson might have called to testify regarding the alleged harassment, it would not have altered Davidson's admission she lied to the OCSD in its criminal investigation. Accordingly, the second amended petition failed to allege a nexus between counsel's alleged misconduct and the arbitration award, and the trial court properly sustained the demurrer.
II. THE SECOND AMENDED PETITION DID NOT SUFFICIENTLY ALLEGE THE ARBITRATOR EXCEEDED HIS POWERS
An arbitration award can be vacated if "[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted." (Code Civ. Proc., § 1286.2, subd. (a)(4).) An award that "violates a party's unwaivable statutory rights or . . . contravenes an explicit legislative expression of public policy" may exceed an arbitrator's power. (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916.) This exception does not, however, "'swallow the rule that arbitration awards are generally not reviewable on the merits.' The [exception is] not 'a back door to Moncharsh through which parties may routinely test the validity of legal theories of arbitrators.'" (Heimlich v. Shivji (2019) 7 Cal.5th 350, 368 .)
"'Vacating an arbitration award based on public policy or a statutory right requires an explicit legislative expression of a public policy violated by the award or a conflict with a statutory scheme.'" (Ling v. P.F. Chang's China Bistro, Inc. (2016) 245 Cal.App.4th 1242, 1252.) A public policy is violated, for example, when arbitration is prohibited by a statutory public policy (Round Valley, supra, 13 Cal.4th at p. 274-275, 287-288), when an arbitration award would enforce an illegal contract (Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 68, 80, 87), or when an arbitration award contravenes an existing judicial injunction. (City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327).
"[E]valuating a challenge to an arbitration award is a two-step process- first the court must determine whether the award is reviewable, and only if review is appropriate does the court consider whether the award should be upheld. [Citations.] The threshold question here, then, is whether according to the arbitration award finality would be inconsistent with protecting [respondent's] statutory rights." (SingerLewak LLP v. Gantman (2015) 241 Cal.App.4th 610, 622.)
Davidson argues her arbitration award falls within the narrow public policy exception because the OCSD failed to inform her of her POBRA rights before interviewing her on November 15. On appeal, she argues she "might have elected to be honest with the Sheriff" if only she had been notified of her POBRA rights. She also argues the Probation Department was prohibited from using her dishonesty as a reason to discharge her because the dishonesty occurred without any notification of her POBRA rights.
POBRA "sets forth a list of basic rights and protections which must be afforded all peace officers [citation] by the public entities which employ them." (Baggett v. Gates (1982) 32 Cal.3d 128, 135.) Among other things, POBRA affords any public safety officer certain rights when he or she "is under investigation and subjected to interrogation by his or her commanding officer, or any other member of the employing public safety department, that could lead to punitive action." (Gov. Code, § 3303.) Punitive action is defined as "any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment." (Ibid.)
Those rights include: (1) the interrogation must be conducted at a reasonable hour, preferably during working hours and, if not during working hours, the employee must be paid for the off-duty time; (2) the employee must be informed, before the interrogation, of the rank, name, and command of the officer in charge of the interrogation as well as the interrogating officers and anyone else present; (3) no more than two interrogators at any time may ask questions; (4) the employee is to be notified of the nature of the investigation; (5) the interrogation must be for a reasonable period and breaks are to be allowed for the employee's physical necessities; (6) the interrogators are not to use offensive language or threats of punitive action, except the interrogators may warn the employee that failure to answer questions may result in punitive action; (7) the employer is not to provide the employee's home address or photograph to the press unless the employee expressly consents; (8) statements made during interrogations by a public safety officer under threat of punitive action are not admissible in subsequent civil proceedings with some exceptions; (9) if the interrogation is recorded, the employee shall have access to the tape or transcribed notes prior to any further interrogation; (10) if the employee may be charged with a criminal offense, they shall be informed of their constitutional rights; and (11) if the interrogation focuses on matters that are likely to result in punitive action, the employee has a right to be represented during the interrogation. (Gov. Code, § 3303, subds. (a)-(i).)
The second amended petition alleges Davidson was employed by the Probation Department and that Davidson's November 15 interview was conducted by the OCSD. Thus, based on Davidson's own allegations, the November 15 interview was not conducted by Davidson's "commanding officer, or any other member of the employing public safety department." (Gov. Code, § 3303.) Under the plain language of the statute, Davidson was not entitled to any POBRA rights or warnings in advance of her interview by the OCSD. Further, POBRA does not apply to investigations "concerned solely and directly with alleged criminal activities." (Id., subd. (i).) Davidson's second amended petition alleges the interrogation was part of a criminal investigation by the OCSD. For this additional reason, Davidson was not entitled to notification of her POBRA rights before the November 15 interview. The court properly sustained the demurrer on these grounds.
On appeal, and in direct contradiction of the allegations of her second amended petition, Davidson now argues the investigation was actually a joint investigation between OCSD and the Probation Department and that it was directed to both potential criminal and administrative action. A petitioner "cannot avoid the original [pleading's] harmful allegations by merely filing an amended complaint omitting or changing them." (Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 597, fn. 2.) Davidson's new argument runs afoul of this principle.
Even if Davidson could ignore her earlier admission that the investigation was conducted solely by OCSD, her current assertion that the investigation was jointly conducted by the Probation Department and the OCSD would still fail. Davidson bases the joint investigation argument on the following statements in her opening brief: (1) a Probation Department Internal Affairs investigator, who knew Davidson was a person of interest to the OCSD, walked Davidson to her office and "directed that she submit to interrogation" by the OCSD; (2) she was placed on administrative leave after the OCSD interview; and (3) a Probation Department employee was present and observed the interrogation for an unspecified time. Based on those statements, Davidson contends this case is on all fours with California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294 (Correctional Peace Officers). We disagree.
In Correctional Peace Officers, the employing agency "threatened [the employees] with arrest and/or discipline if they asserted their rights during interrogation" by the California Department of Justice, guarded "[h]allway exits and interrogations rooms" to prevent the employees from leaving, and "threatened the officers with criminal and disciplinary sanctions" if they did not provide "satisfactory responses" to the Department of Justice investigators. (Correctional Peace Officers, supra, 82 Cal.App.4th at p. 307.) Davidson does not assert that any of those facts-or even facts similar to them-were present here. Even if Davidson's belatedly-asserted facts did not directly contradict the allegations of the second amended petition, they bear no resemblance to those in Correctional Peace Officers.
We conclude Davidson has not shown the OCSD interview was conducted in violation of her POBRA rights. Thus, according finality to the arbitration award is not "inconsistent with protecting [Davidson's] statutory rights." (SingerLewak LLP v. Gantman, supra, 241 Cal.App.4th at pp. 621-622.)
Even if Davidson had been entitled to notification of her POBRA rights, the award still would not be reviewable under the limited exception for awards that violate public policy. Davidson identifies six cases she believes support her claim for review of the award: Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665 (Pearson); Round Valley, supra, 13 Cal.4th 269; Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362 (Advanced Devices); Sargon Enterprises, Inc. v. Browne George Ross LLP (2017) 15 Cal.App.5th 749 (Sargon); Brown v. TGS Management Co., LLC (2020) 57 Cal.App.5th 303 (Brown); and Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21 (Ahdout). As shown by those cases, the limited exception applies only where the court's enforcement of an award would violate an unwaivable statutory right or an explicit legislative expression of public policy, such as an award that improperly prevents a party from having their claim heard in any forum (Pearson, at pp. 679-680 and Sargon, at p. 755), an award that allows arbitration of a matter that is expressly prohibited, by statute, from being heard in arbitration (Round Valley, at p. 272), or an award that enforces an illegal contract (Brown, at pp. 305-307).
The appellate court in Pearson vacated the arbitration award because the arbitrator's "clear legal error" prevented an employee, who was subject to a mandatory arbitration agreement, from obtaining a hearing on the merits of a statutory discrimination claim in any forum. (Pearson, supra, 48 Cal.4th at pp. 679-680.) Unlike the plaintiff in Pearson, Davidson's claim was heard by the arbitrator. In Round Valley, the arbitration award was vacated because a statute barred the claim from proceeding to arbitration and the plaintiff therefore had no right to have his claim arbitrated. (Round Valley, supra, 13 Cal.4th at p. 272 [Ed. Code § 44929.21 "preempts" the parties' agreement to arbitrate].) In contrast, Davidson did have a right to arbitration, and that right was exercised and honored. Advanced Devices does not support Davidson's position because, in that case, the appellate court found the arbitrator's award did not exceed his powers, even though he awarded relief that would not have been available in a court proceeding. (Advanced Devices, supra, 9 Cal.4th at pp. 366-367.)
Sargon, Brown, and Ahdout also are distinguishable. The arbitrator in Sargon determined the claimant had forfeited any right to arbitration by first filing an action in superior court. The appellate court determined the arbitrator's decision violated the claimant's statutory right under Code of Civil Procedure section 1280 et seq. "to seek a preliminary determination of arbitrability from a court." (Sargon, supra, 15 Cal.App.5th at p. 755.) In Brown, the appellate court found the arbitrator exceeded his powers because the award enforced an illegal contract. (Brown, supra, 57 Cal.App.5th at pp. 305-307.) The arbitrator in Ahdout refused to compel an unlicensed contractor to disgorge the compensation it received for contracting services. The appellate court vacated the award because it directly contradicted Business and Professions Code section 7031, subdivision (b), which requires disgorgement of compensation by unlicensed contractors. (Ahdout, supra, 213 Cal.App.4th at pp. 38-39.)
In sum, none of the cases cited by Davidson is on point or compels the result Davidson seeks. At bottom, Davidson asks us to vacate the arbitration award because she believes the arbitrator should have ruled in her favor. We are not at liberty to do so. This case falls squarely within the general rule that "'[t]he merits of the controversy between the parties are not subject to judicial review.' [Citations.] More specifically, courts will not review the validity of the arbitrator's reasoning. [Citations.] Further, a court may not review the sufficiency of the evidence supporting an arbitrator's award." (Moncharsh, supra, 3 Cal.4th at p. 11.)
We conclude the trial court properly sustained the demurrer to Davidson's second amended petition.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY SUSTAINING THE DEMURRER WITHOUT LEAVE TO AMEND
Finally, Davidson argues for the first time on appeal that the superior court had both the power and the obligation to vacate the arbitration award under Government Code section 3309.5, subdivisions (d) and (e) and grant her relief for the claimed POBRA violation. Citing Government Code section 3309.5, Davidson asserts "[s]ince the Department violated [her] rights under POBRA, it is appropriate for the Court of Appeal to reverse the judgment after demurrer was sustained and vacate the arbitration award under Code of Civil Procedure section 1286.2, and to remand with directions that the trial court exercise its broad discretion to determine what relief is appropriate to remedy the POBRA violation." Because Davidson's petition did not assert a claim for relief under Government Code section 3309.5, we treat this as an argument that the trial court erred by not granting Davidson leave to amend her petition a third time to assert such a claim.
Although a plaintiff challenging a ruling sustaining a demurrer without leave to amend may show the possibility of amendment for the first time on appeal (Nealy v. County of Orange, supra, 54 Cal.App.5th at p. 608), it has the burden of articulating specific proposed new allegations that would support all the required elements of the cause of action the party seeks to amend (McMartin v. Children's Institute International (1989) 212 Cal.App.3d 1393, 1408). Davidson has not done so here.
Government Code section 3309.5, subdivision (d)(1) provides that where a POBRA violation has been found, the superior court "shall render appropriate injunctive or other extraordinary relief to remedy the violation and to prevent future violations of a like or similar nature, including, but not limited to, the granting of a temporary restraining order, preliminary injunction, or permanent injunction prohibiting the public safety department from taking any punitive action against the public safety officer." (Ibid.) In addition, upon a finding of malicious intent, the statute authorizes a civil penalty of not more than $25,000 and reasonable attorney fees plus damages, if proven. (Id., subd. (e).)
As explained above, however, Davidson's second amended petition failed to sufficiently allege a POBRA violation, and the record does not support any claim of a POBRA violation. Accordingly, Davidson has not shown that amending her petition a third time to assert a claim for relief under Government Code section 3309.5 would state a basis for vacating the arbitration award.
Nor is there any other basis to return this case to the trial court to permit Davidson to file yet another amended petition. Having already provided Davidson two opportunities to amend her petition, the court did not err by sustaining the demurrer to the second amended petition without further leave to amend. Davidson has not shown additional facts that would be sufficient to state a claim to vacate the arbitration award under any legal theory.
DISPOSITION
Respondent's request for judicial notice is denied as to exhibit A, which is irrelevant to our disposition of this appeal, and granted as to exhibit B. The judgment of dismissal is affirmed. Respondent is to recover its costs on appeal.
WE CONCUR: O'LEARY, P.J., BEDSWORTH, J.