Opinion
D069106
01-23-2017
RUDY DIAZ, Plaintiff and Appellant, v. CITY OF CHULA VISTA, Defendant and Respondent.
Shewry & Saldaña and Christopher C. Saldaña for Plaintiff and Appellant. Karen Lynn Rogan, City Attorney; Dentons US and Charles A. Bird for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00035036-CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joel M. Pressman, Judge. Affirmed. Shewry & Saldaña and Christopher C. Saldaña for Plaintiff and Appellant. Karen Lynn Rogan, City Attorney; Dentons US and Charles A. Bird for Defendant and Respondent.
Rudy Diaz, a captain at the Chula Vista Fire Department, appeals from a judgment entered in favor of the City of Chula Vista (City) following the trial court's denial of his second amended petition (petition) for a writ of administrative mandamus and/or a peremptory writ of mandamus pursuant to Code of Civil Procedure sections 1094.5 and 1085, respectively. This case arose in 2011 when Diaz took a three-part fire battalion chief recruitment examination (examination or battalion chief examination) in an attempt to be included on a list of candidates eligible to be considered for promotion to an open fire battalion chief position only during the next year. The minimum acceptable examination score was 70 (out of a maximum of 100), unless otherwise provided in advance in a published examination notice. Diaz failed the simulation exercise component of the examination by failing to achieve the minimum passing score of 70, but he received an overall weighted score of 73 on the examination. In early November 2011 the City notified Diaz that he failed the examination because he did not achieve a passing score on the simulation exercise component. Diaz did not object until early August 2012 when he met with the City's director of human resources. Seeking to appeal to the Chula Vista Civil Service Commission (Commission), Diaz orally raised his objection during the public comments portion of the Commission's meeting in November 2012. Later, following its December 2012 meeting, the Commission adopted a report of the City's human resources department that determined Diaz's objection was procedurally defective and untimely under rule 1.04(J)(1)(a) of the Chula Vista Civil Service Rules, which required any objection to a decision of the City's director of human resources "[i]n matters involving examinations announcements and removal of name from eligibility lists" (italics added) to be made in writing within 30 days of the decision.
All further statutory references are to the Code of Civil Procedure.
All further rule references are to the Chula Vista Civil Service Rules.
Diaz thereafter filed his petition in which he asked the court to compel the City (among other things) to find that he passed the examination, promote him to battalion chief, and pay him for the compensation he lost as a result of the City's allegedly erroneous determination that he had failed the examination. The court denied the petition on numerous grounds. As pertinent here, the court found that even if Diaz passed the examination and was eligible to be placed on the one-year battalion chief eligibility list, as he claimed, the evidence established that placement on the list did not guarantee promotion and, thus, Diaz's damages were speculative and could not be determined.
Appealing the judgment denying his petition, Diaz contends the court erred in denying the petition on the basis that relief was speculative. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Diaz is a permanent classified civil service employee at the Chula Vista Fire Department. He has worked there for about 20 years as a firefighter, and he has been a fire captain since 2004.
2011 Battalion Chief Examination
Section 700 of the City's charter (Charter) provides that "[a]ppointments and promotions in the Classified Service of the City shall be made according to merit and fitness and from eligible lists to be established in accordance with civil service rules and regulations adopted in the manner provided in this Charter."
On August 9, 2011, the City's human resources department, acting pursuant to rule 1.04(C), posted a notice announcing a "closed-promotional opportunity open only to City of Chula Vista Fire Department personnel" to take a fire battalion chief recruitment examination that would "establish an eligibility list only" and would "be used to fill any future [fire battalion chief] openings that may occur in the next year" (italics added). The one-year battalion chief eligibility list from the 2011 examination took effect on November 15 of that year and expired on November 14, 2012. Placement on the battalion chief eligibility list does not guarantee promotion to a vacant battalion chief position. In the fire department, the chief has discretion not to promote anyone to a vacant battalion chief position. An eligibility list typically supplies only its three highest-ranking candidates for consideration when a position is open. (Charter, § 702(d).)
Rule 1.04(C) ("PROMOTIONAL EXAMINATIONS") provides: "The Director of Human Resources will decide whether to give a test to establish an eligibility list for any class and whether the test will be open or closed promotional. [¶] Closed promotional examinations will include an appraisal of the qualifications of eligible employees. Candidates who attain the required standard in a closed promotional examination will have their names placed on an eligibility list, and appointments from the list will be made in the same manner as original appointments. [¶] When closed promotional examinations are held, they will only be open to probationary and permanent employees in the classified service as described in section 1.07, subdivision A, paragraph 3. The Director of Human Resources may establish the minimum qualifications for taking closed promotional examinations. Open examinations will be open to all qualified applicants."
Section 702(d) of the Charter provides: "The Civil Service rules and regulations shall provide for the following matters[:] [¶] . . . [¶] The certification of three names standing highest on the eligible list to the appointing authority to fill a position in the Classified Service, unless the Civil Service Commission, with the consent of the appointing power, authorized the certification of less than three names on an eligible list and, in the opinion of the said Commission and such appointing power, conditions warrant such action." (Italics added.)
The battalion chief examination consisted of three components: (1) a simulation exercise, which was weighted at 50 percent; (2) a written examination weighted at 20 percent; and (3) a panel interview weighted at 30 percent. Diaz applied to be included on the battalion chief eligibility list and, along with four other candidates, took the examination.
On November 2, 2011, Irene Mosely, then the City's human resources operations manager, notified Diaz in writing that he had failed the examination because he did not achieve a passing score on the simulation exercise component. Specifically, Mosely's correspondence stated:
"Unfortunately, your score on the Simulation Exercise component did not meet the minimum pass point of 70. You must achieve a passing score on each component of the selection process. [¶] Your scores are summarized below for your reference: [¶] Simulation Exercise (Weight 50%)[:] 63% (FAIL)[;] [¶]Written Examination (Weight 20%): 76%[;] [¶] Panel Interview (Weight 30%): 87%[.]" (Italics added.)
Diaz's 2012 Objections Claiming He Passed the Examination
Rule 1.04(F), which governed the scoring of the battalion chief examination that Diaz took, provides:
"Unless otherwise provided in notices published prior to holding the examination, applicants shall be graded on a scale in which 100 is the highest grade that can be expected and 70 is the lowest acceptable grade. Deviations from this grading scale may be established by announcing the different required minimum grade in the examination notice. Deviations designated by the Director of Human Resources may provide for a minimum grade in any part of
the examination that would permit an applicant who scores below that grade to be disqualified from the remainder of the examination. [¶] In examinations composed of several tests graded independently, the grade of each test will be added together to determine the overall grade for placement on the eligibility list." (Italics added.)
Here, as the court later found, it is undisputed that no notice was published prior to the holding of the 2011 battalion chief examination that would have changed the minimum acceptable grade for passing that examination to anything other than an average weighted score of 70.
However, the City's standard practice for 10 years, including 2011, was to require a passing score on each component of the battalion chief eligibility examination. For example, in early 2007 the City posted a closed promotional battalion chief recruitment opportunity. Under the subheading "Eligibility Lists," the posting stated: "All candidates who successfully pass all phases of the examination process are placed on an eligibility list." (Italics added.)
During her deposition Kelley Bacon, who was the City's director of human resources when Diaz took the examination in 2011, indicated that fire captains were expected to know about the practice of requiring candidates to successfully pass all components of the battalion chief examination in order to be placed on the eligibility list. Specifically, she testified that "if you're testing for a battalion chief position, you've likely tested before. You've come up through the ranks from firefighter to engineer to captain to battalion chief, so you know that there are pass/fail [components]." During his deposition testimony, Diaz acknowledged that he took and passed each component of the 2007 battalion chief examination (discussed, ante). He also acknowledged that no representative of the City told him he could pass the 2011 examination without passing each element.
In early August 2012—about nine months after Mosely informed Diaz he had failed the battalion chief examination and about four months before the one-year battalion chief eligibility list expired in mid-November 2012—Diaz met with Bacon to object, and he told her he thought he had passed the examination.
About a month later, Diaz sent the following e-mail to Bacon in which he referenced their August meeting, reasserted his objection, and asked that he be placed on the battalion chief eligibility list:
"I was wondering w[h]ere we are at regarding my [q]uestion to you that I felt I passed the Battalion Chief test with a score of 72.8. I was able to arrive at this score by averaging the scores I received during the test. In the job announcement there [were] no failing components that were announced. I came to this score by averaging my scores in different events. I therefore feel I passed the test and would like to be put on the eligibility list for Battalion Chief."
On September 26, 2012, after investigating the matter, Bacon e-mailed to Diaz her response. Bacon reminded Diaz that he had taken the 2007 battalion chief examination, and that the "simulator" (simulation exercise) was both a "pass/fail" component of that examination and a "past practice." Bacon also informed Diaz that his objection and request to be placed on the battalion chief eligibility list were untimely. Specifically, Bacon stated:
"I have been advised by the [City] Attorney's office to notify you of [Rule 1.04(J)(1)(a)][,] which states that if you have an objection on any matter involving an examination that you have 30 days to appeal and object to the exam results. Therefore, your request is not timely."
Rule 1.04[(J)(1)(a)] provides in part: ""J. OBJECTIONS TO DECISION [¶] 1. Limited review of examination announcements and removal of name from eligibility lists. [¶] a. In matters involving examination announcements and removal of name from eligibility lists, approval given to those actions by the Director of Human Resources is final, unless an objection is made in writing to the Civil Service Commission, within 30 days of the Director of Human Resources' decision. An objection is limited to claims that the Civil Service Rules . . . were not followed in making the decision."
On November 7, 2012, seeking to appeal to the Commission, Diaz appeared at the Commission's meeting and orally raised his objection during the public comments portion of the meeting. Bacon was present. Citing rule 1.04(F) (discussed, ante), Diaz told the commissioners there was no mention of "failing components" in the 2011 battalion chief examination announcement, and thus his scores on the components should have been averaged. Diaz stated that, "if you average my score, I come out with a score of a 73 so therefore, I passed this examination." Challenging Bacon's determination that his objection was untimely under rule 1.04(J)(1)(a) (see fn. 5, ante), Diaz also told the commissioners:
"Section J [(Rule 1.04[(J)(1)(a))] applies to matters involving examination announcements and removal of names from eligibility lists, . . . which means that an issue involving only one of these components has different rules applicable."Diaz added, "I was never on an eligibility list so how can [rule 1.04(J)(1)(a)] apply to me?" Diaz complained that after he took the examination "they have promoted three battalion chiefs in this organization." He concluded by saying, "I would have been the fourth person on that [battalion chief eligibility] list." (Italics added.)
On December 6, 2012, at the Commission's request, Bacon prepared a report (Bacon's report) concerning Diaz's complaint. Citing rule 1.04(J)(1)(a) and noting that Diaz was informed on November 2, 2011, that he had failed the examination because he had failed the simulation exercise component of that examination, Bacon stated in her report that Diaz "should have filed an objection by December 2, 2011." Noting that Diaz never submitted a written objection to the Commission as required by rule 1.04(J)(1)(a), Bacon determined that his oral complaint to the Commission at its meeting on November 7, 2012, was "untimely." Bacon concluded that Diaz's appearance before the Commission on that date "was well over the 30[-]day time period in which to file a written objection" and, "[a]s a result, his complaint is procedural[ly] defective in that he did not file a written objection and is untimely because his oral complaint is well beyond the 30-day time limit in which to file a written objection, by at least several hundred days." Thus, she wrote, "the [Commission] may not hear [Diaz's] complaint."
Diaz attended the Commission's next regular meeting in early December 2012. During the portion of the meeting that dealt with action items, Bacon's report—which determined that Diaz's objection was procedurally defective and untimely under rule 1.04(j)(1)(a)—was read into the record. Diaz spoke to the commissioners during the public comments portion of the meeting. He argued that his objection was timely because the 30-day time limit in rule 1.04(J)(1)(a) did not apply to him. A few days later, Bacon e-mailed Diaz and informed him the Commission had adopted her report and would "[take] no further action."
Diaz's Petition and the Court's Rulings
In November 2014 Diaz filed his amended petition for a writ of administrative mandamus and/or a peremptory writ of mandamus pursuant to sections 1094.5 and 1085. In the petition Diaz asked the court to compel the City to (among other things) (1) find that he passed the examination and that his name should have been included on the battalion chief eligibility list, (2) promote him to battalion chief, and (3) pay him for the compensation he lost as a result of the City's allegedly erroneous determination that he had failed the examination.
The City opposed the petition on numerous grounds. As pertinent here, the City argued that monetary damages "must be certain and cannot be recovered if the evidence leaves them speculative or conjectural."
During the hearing on the petition, Diaz's counsel maintained that Diaz passed the 2011 battalion chief examination under rule 1.04(F) because (1) nothing in the examination announcement "[said] anything about there being a pass/fail component of [the] examination"; and, thus, (2) although Diaz scored below 70 on the simulation exercise component of the examination, his overall weighted score of 72.8, which rounded up to 73, was a passing score. Thus, counsel argued, Diaz should have been placed on the battalion chief eligibility list and given the right to be interviewed for an open battalion chief position because he passed the examination.
Diaz's counsel also asserted that the 30-day time limit set forth in rule 1.04(J)(1)(a) for an objection did not apply because "that rule says on its face . . . that it pertains to examination announcements and removals of a name from an eligib[ility] list," and Diaz "had neither of those complaints." Rather, counsel asserted, Diaz's "complaint was a grading complaint, not anything to do with the [examination] announcement or anything to do with having his name removed from an eligib[ility] list that he was never on."
Diaz's counsel acknowledged, however, that Diaz's passing the battalion chief examination did not guarantee he would be promoted to battalion chief. Specifically, counsel acknowledged that, "if you pass the test, what happens is you're promoted to what they call an eligible list, and . . . that gives you the right to be interviewed for an open battalion chief . . . position. The interview is done by the fire chief and you are not guaranteed any job but you're guaranteed that you will be interviewed." (Italics added.) Counsel then stated that the three candidates who passed the examination and were promoted to the eligibility list "all got battalion chief jobs. Two other jobs have been filled since that eligib[ility] list was created. They had another exam in 2012 and that had additional candidates [who got] on the list." Asserting that Diaz "has to be compensated in some fashion for being denied what the civil service rule says would be his right . . . to be on that list and be eligible for interviews as a result," counsel claimed Diaz was entitled to compensation "in the neighborhood of" $400,000 to $450,000.
In opposition to the petition, the City's counsel argued that Diaz was not entitled to traditional writ of mandate relief under section 1085 because (1) the City had no clear, present, and nondiscretionary duty under rule 1.04(F) or rule 1.04(J)(1)(a) to determine that Diaz passed the examination; and (2) there was no authority that Diaz had a clear and present right to be promoted or receive compensation for back pay.
The City's counsel also argued that Diaz was not entitled to administrative mandamus relief under section 1094.5 because (1) there was no administrative order or decision by the City that followed an adjudicatory hearing in which evidence was required to be taken; (2) the "law vests [the] City with the right to determine the requirements of grading and filling positions"; and (3) there was no prejudicial abuse of discretion because Diaz was "not entitled to a promotion" and, even if he had made it on the eligibility list, he would have gotten at most one or two interviews and "[h]e was not guaranteed to get a promotion." Thus, the City's counsel argued, the denial of at most two interviews was not compensable because Diaz was not guaranteed a promotion if he was given an interview, and "the law does not award damages . . . when damages are speculative."
After taking the matter under submission, the court issued a seven-page minute order denying Diaz's petition on numerous grounds. The court first found that this case was "a case of traditional mandamus," not "[a]dministrative [m]andamus." Citing section 1094.5, the court stated it "agree[d] with the City" that Diaz's petition contained no allegations supporting a finding that Diaz "had an administrative review of a final decision by [the] City, where the law required a hearing be given, evidence . . . be taken, and discretion in the determination of facts is vested with the agency." The court also found that "any relief under [section] 1094.5 appears to be barred by the statute of limitations." Citing section 1094.6, subdivisions (a) and (b), the court stated that "[t]he limitation period applicable to administrative mandamus actions is 90 days following the date on which any contested decision becomes final." The court found that "all events in this action occurred in 2012," and "[t]he Petition against the City was not filed until November, 2014, well beyond 90-days." The court further found that, "[e]ven if [section] 1094.5 applied, [Diaz] ha[d] not alleged a remedy under that section" because "remedies in this matter are limited to a judgment setting aside an agency decision or remanding a matter back to an agency" and "[m]onetary damages are not available."
With respect to Diaz's claim for writ relief under section 1085, as pertinent here, the court noted the City's argument that Diaz's petition was time-barred under rule 1.04(J)(1)(a). Rejecting the City's argument, the court stated:
"As worded, this rule seems to apply to 'examinations announcements' [sic] and 'removal of name from eligibility lists.' The Court agrees with [Diaz] that he is objecting to examination results, which does not appear to be covered by this rule as stated. While the City argues that a comma is absent between 'examinations' and 'announcements[,'] . . . the Court cannot rewrite the rule to conform the meaning to the City's interpretation."
The court also addressed Diaz's claim that, under rule 1.04(F), his overall score of 72.8 on the battalion chief examination, and not his failing score on the simulation exercise component of that examination, should have determined whether he passed the examination and whether he should have been placed on the battalion chief eligibility list. The court ruled that, even if Diaz passed the examination and was eligible to be placed on the battalion chief eligibility list, "placement on the list did not guarantee promotion," and, thus, Diaz's damages were speculative and could not be determined. The court explained:
"Chief Dave Hanneman testified that he had discretion to not promote anyone. [Citation.] Further, [Diaz] concedes that, given his scores in relation to other candidates, he would be placed fourth on the list. Given that the three candidates with the highest scores are interviewed for each open position, it is not clear that [Diaz] would have been interviewed based on his placement. The eligibility list is only in effect for one year. [(Rule 1.04(I)[(3)]).] Based on this information, whether he would have been promoted is speculative. In other words, any 'damages' here are completely speculative. At the hearing [Diaz] argued that the lost opportunity from being fourth on the list should be somehow compensable, but the Court does not see how damages can be determined. [¶] Nor does the Court see any value in remanding the case for a determination by the Civil Service Commission. Damages are impossible to calculate given the discretion of the City and that [Diaz] could have, at best, been fourth on the list of potential candidates." (Italics added.)
Diaz's appeal from the judgment denying his petition followed.
DISCUSSION
Diaz claims the judgment denying his petition "should be reversed and the action remanded with instructions to grant the petition and hold a hearing to allow [him] to prove up his damages." (Italics added.) In support of this claim, Diaz asserts the court "erred in denying [his] petition on the basis that relief was speculative." Diaz challenges the court's findings that, even if he passed the 2011 battalion chief examination and was eligible to be placed on the one-year battalion chief eligibility list, his "placement on the list [did] not guarantee [his] promotion [to battalion chief]" and, thus, his alleged damages were "completely speculative" and "[could not] be determined." We reject Diaz's claim and conclude the court properly denied his petition.
Diaz's petition asked the court to "issue a writ of mandate and/or peremptory writ" pursuant to sections 1094.5 and 1085 to compel the City to do three main things: (1) find both that Diaz passed the battalion chief examination in accordance with rule 1.04(F) because he achieved an overall passing score of 72.8 even though he failed the simulation exercise, and that his name should have been included on the battalion chief eligibility list; (2) promote him to battalion chief; and (3) pay him for the compensation he lost as a result of the City's allegedly erroneous determination that he had failed the examination.
In the interest of clarity, we reiterate that rule 1.04(F), which governed the scoring of the examination Diaz took, provides: "Unless otherwise provided in notices published prior to holding the examination, applicants shall be graded on a scale in which 100 is the highest grade that can be expected and 70 is the lowest acceptable grade. Deviations from this grading scale may be established by announcing the different required minimum grade in the examination notice. Deviations designated by the Director of Human Resources may provide for a minimum grade in any part of the examination that would permit an applicant who scores below that grade to be disqualified from the remainder of the examination. [¶] In examinations composed of several tests graded independently, the grade of each test will be added together to determine the overall grade for placement on the eligibility list." --------
Diaz did not demonstrate in the superior court, and has not shown and cannot establish on appeal, that he was entitled to any of the relief requested in his petition. First, he has not shown he was entitled to a writ compelling the City to find his name should have been included on the battalion chief eligibility list because (he contends) he passed the battalion chief examination. A petition for a writ of mandamus generally must be dismissed if any ruling by the court can have no practical impact or provide effectual relief. (2 Cal. Administrative Mandamus (Cont.Ed.Bar 3d ed. 2016) § 13.19, p. 13-13, citing Hixon v. County of Los Angeles (1974) 38 Cal.App.3d 370, 378 [affirming denial of petition for writ of mandate requiring county to prepare a environmental impact report for a construction project that was already completed].)
Here, the record establishes that the relief Diaz sought—a writ compelling the City to find that he passed the examination and that his name should have been included on the battalion chief eligibility list—became futile and ineffectual when, as the City properly argued in the superior court, that list expired on November 14, 2012, before he filed his petition. The duration of that list was governed by rule 1.04(I)(3), which provides in part:
"Duration of List: Eligibility lists shall remain in effect for one year unless a different effective period, not to exceed two years, is posted on the job announcement in advance. Prior to the expiration of the eligibility list the City Manager or a department head may request that an eligibility list be extended. The Director of Human Resources may recommend to the Civil Service Commission that an eligibility list be extended for up to two additional years pursuant to a request or on his or her finding that the list should be extended." (Italics added.)
The job announcement in the examination notice posted by the City's human resources department in early August 2011 informed Diaz that the battalion chief eligibility list was only a one-year list. Specifically, the examination notice told him the battalion chief examination would "establish an eligibility list only" and would "be used to fill any future [fire battalion chief] openings that may occur in the next year" (italics added). Mosely testified during her deposition that the one-year battalion chief eligibility list from the 2011 examination took effect on November 15 of that year and expired one year later on November 14, 2012. Diaz filed his petition in 2014 well after the one-year battalion chief eligibility list expired in 2012. On appeal, Diaz does not address the evidence showing the duration of the eligibility list was limited to one year, nor does he contest the City's argument that the writ relief he requested became futile and ineffectual when the list expired on November 14, 2012, before he filed his petition. Thus, because the record and applicable authority show the relief Diaz requested would have been futile and ineffectual, we conclude the court properly denied Diaz's petition for that relief.
Second, even if we were to assume that Diaz passed the examination, that he made a timely objection to the administrative determination that he had failed the examination, that he should have been put on the elibility list, and that the duration of that list was somehow extended beyond the one-year duration provided in the examination notice, Diaz has not shown, and cannot demonstrate, that he was entitled to the second principal form of relief he requested in his petition: a writ compelling the City to promote him to the position of battalion chief. On appeal the City argues, and Diaz does not contest, that entitlement to be on a list of persons eligible for a civil service position like battalion chief does not create a right to appointment to that position. (See Graham v. Bryant (1954) 123 Cal.App.2d 66, 70-71 (Graham) ["[t]he fact that appellant was placed on the eligible list did not give him any vested right in such office or any civil service status"]; Dawn v. State Personnel Board (1979) 91 Cal.App.3d 588, 592 (Dawn) ["[b]eing on an eligible list affords no right to an appointment"].) In addition, uncontroverted evidence in this case establishes that Diaz had no right to such appointment. Specifically, the job announcement in the examination notice told Diaz that his passing the battalion chief examination would "establish an eligibility list only" (italics added) that "[would] be used to fill any [battalion chief] openings that may occur in the next year." Chula Vista Fire Department Chief Dave Hanneman testified during his deposition that placement on the battalion chief eligibility list "[did not] guarantee" promotion to a vacant battalion chief position because the chief "[has] discretion not to promote anyone" to such a position. During the hearing on the petition, Diaz's counsel acknowledged that candidates on the battalion chief eligibility list who were interviewed by the fire chief were "not guaranteed any job." Thus, because the record and applicable authority establish that Diaz's assumed right to be placed on the battalion chief eligibility list did not create a right to be promoted to a vacant battalion chief position, we conclude the court properly denied Diaz's petition to the extent it prayed for a writ compelling the City to promote him to the position of battalion chief.
Last, Diaz has not shown, and cannot demonstrate, that he was entitled to the third principal form of relief he requested in his petition: a writ compelling the City to "[p]ay [him] all compensation, with interest at the legal rate, that he lost as a result of the [City's] wrongful determination that he failed the examination." As a matter of public policy, speculative damages will not support a cause of action and are not recoverable. (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1048 (Ferguson).) "[I]t is black-letter law that damages may not be based upon sheer speculation or surmise." (Ventura County Humane Society v. Holloway (1974) 40 Cal.App.3d 897, 907 (Holloway); accord, Ferguson, at p. 1048.)
Here, the court properly found that, even if Diaz passed the examination and was eligible to be placed on the one-year battalion chief eligibility list as he claimed, his placement on the list did not guarantee his promotion to a vacant battalion chief position and, thus, his alleged damages were "completely speculative" and "[could not] be determined." As already discussed, entitlement to be on a list of persons eligible for a civil service position like battalion chief does not create a right to appointment to that position. (See Graham, supra, 23 Cal.App.2d at pp. 70-71; Dawn, supra, 91 Cal.App.3d at p. 592.) Furthermore, the evidence showed the fire chief was not required to make a promotion to a vacant battalion chief position, and the decision whether to do so was entirely discretionary. Thus, even if we were to assume Diaz should have been included on the battalion chief eligibility list and interviewed for an open battalion chief position, the record and applicable authority support the court's finding that Diaz's claimed damages were not recoverable because they were "completely speculative." (See Ferguson, supra, 30 Cal.4th at p. 1048; Holloway, supra, 40 Cal.App.3d at p. 907.) Accordingly, we conclude the court properly denied Diaz's petition to the extent it prayed for a writ compelling the City to pay him for the compensation he allegedly lost as a result of the City's allegedly erroneous determination that he had failed the battalion chief examination.
For all of the foregoing reasons, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. BENKE, J.