Opinion
G061503
08-22-2023
HOWARD GENSLER, Plaintiff and Appellant, v. BOARD OF TRUSTEES OF THE SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT et al., Defendants and Respondents.
Howard Gensler, in pro. per., for Plaintiff and Appellant. Walsh & Associates, Dennis J. Walsh and Wendy K. Marcus for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2021-01177691, Derek W. Hunt, Judge. Dismissed.
Howard Gensler, in pro. per., for Plaintiff and Appellant.
Walsh & Associates, Dennis J. Walsh and Wendy K. Marcus for Defendants and Respondents.
OPINION
MOTOIKE, J.
Following a hearing, the appointed administrative law judge (ALJ) upheld the decision of the Board of Trustees of the South Orange County Community College District (Board) and the South Orange County Community College District (District) to terminate the employment of plaintiff Howard Gensler, a tenured professor. Gensler thereafter filed in the trial court a petition for writ of administrative mandate under Code of Civil Procedure section 1094.5 (the petition) in which he prayed for reinstatement and backpay.
Following review of the administrative record and the parties' briefs, and after hearing argument, the trial court issued a "statement of decision" in which it discussed, without deciding, the myriad of issues raised by Gensler in the petition. Instead of granting or denying any of the relief requested in the petition, the trial court ordered the matter remanded to the Board and the District to conduct peer review evaluations pursuant to Education Code section 87663, subdivisions (b) and (c). The court stated it believed the ALJ's conclusions must be "reevaluated" following that process. Gensler appealed.
All further statutory references are to the Education Code unless otherwise specified.
Applying the holding and reasoning of the California Supreme Court's decision in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109 (Dhillon), we conclude the trial court's order did not constitute an appealable order or judgment. We therefore dismiss this appeal.
FACTUAL AND PROCEDURAL HISTORY
I.
GENSLER'S EMPLOYMENT TERMINATION AND THE ADMINISTRATIVE HEARING
The facts in this section I are taken from the ALJ's opinion.
Gensler was employed by the District as a regular academic employee on January 1, 2003. He was a full-time faculty member in the Economics and Political Science Departments of the Social and Behavioral Sciences Division at Saddleback College.
In December 2018, the District placed Gensler on administrative leave and provided notice of its intent to terminate his employment. Gensler attended a Skelly hearing on January 15, 2019, conducted by Dr. Elliot Stern, who had assumed the role of president of Saddleback College just two days earlier. After considering Gensler's oral and documentary evidence, Stern affirmed the decision to terminate Gensler's employment.
Skelly v. State Personnel Board (1975) 15 Cal.3d 194.
On January 31, 2019, Stern signed the Statement of Charges and Recommendation for Termination. That same day, Dr. Kathleen Burke, the District's chancellor, signed a concurrence with Stern's recommendation. On February 1, 2019, those documents were forwarded to the Board, as was Gensler's most recent faculty performance evaluation dated November 2, 2015.
In February 2019, the Board, in Resolution No. 10-05, voted to give notice to Gensler that his employment with the District would be terminated effective 30 days from the service of the notice unless he requested a hearing. Dr. Cindy Vyskocil, Vice Chancellor for Human Resources, notified Gensler of the Board's decision and his right to request a hearing.
In March 2019, Gensler timely filed a notice of defense/objection and requested a hearing. In June 2019, Stern signed the accusation, alleging as the causes for the employment termination decision Gensler's "evident unfitness for service" (§ 87732, subd. (d)) and his "persistent violation of, or refusal to obey, the school laws of the state or [the] reasonable regulations prescribed for the government of the district's board" (§ 87732, subd. (f)). As factual grounds for dismissal, the accusation specified several instances of misconduct occurring from the Fall 2015 semester through the Spring 2018 semester. Pursuant to section 87678, the Board certified the matter to the Office of Administrative Hearings for the appointment of an administrative law judge.
In February 2020, the ALJ presided over 10 days of hearing at which the ALJ received testimonial and documentary evidence and heard the parties' arguments. In a 137-page opinion dated October 14, 2020, the ALJ concluded "[c]ause exists to dismiss [Gensler] pursuant to Section 87732, subdivisions (d) and (f). The district's decision to dismiss [Gensler] from employment is reasonable and supported by a preponderance of the evidence." Accordingly, the ALJ affirmed the District's decision to terminate Gensler's employment.
II. GENSLER FILES THE PETITION
In January 2021, Gensler filed a verified "Petition for Writ of Mandate (CCP Sec. 1094.5)" (the petition), naming the Board and the District as respondents, in which he sought the issuance of a writ "to vacate the termination decision of [the] Administrative Law Judge . . . and order the reinstatement of Gensler with back pay." The petition asserted six causes of action.
In the first cause of action, Gensler asserted respondents provided defective notice and lacked jurisdiction, having violated sections 87671, subdivision (a) (failure to conduct a current evaluation), 87663, subdivision (c) (failure to include a peer review), 87663, subdivision (g) (failure to include student evaluations), 87031, subdivision (b)(1) (failure to allow Gensler to provide written comments to derogatory material placed in his personnel file which was used in the termination process), 87680 (considering and relying upon evidence older than four years), and 87672 (failure to provide notice of the complete and precise decision of the governing board and the reasons for the termination).
In the second cause of action in the petition, Gensler asserted the ALJ erred by concluding Gensler had engaged in unprofessional conduct justifying the termination of his employment.
In the third cause of action, Gensler asserted the ALJ erred by concluding Gensler's statements were not protected by the First Amendment to the United States Constitution and his right to academic freedom.
In the fourth cause of action, Gensler asserted he was deprived of a fair trial. He asserted the ALJ abused his discretion by precluding opening statements and closing argument, committing evidentiary error, relying on cases the Board had not cited in its briefing, ignoring pretrial motions and the Board's alleged discovery abuses, and denying Gensler's requests for sanctions and continuances.
In the fifth and sixth causes of action, Gensler asserted the ALJ's findings of Gensler's "'evident unfitness'" and "'persistent failure to follow rules,'" respectively, should be reversed.
In the petition's prayer for relief, Gensler stated he "respectfully prays that the court enter judgment against Respondents as follows:
"1. For a Writ of Mandate to be issued under Code of Civil Procedure section 1094.5 under seal of this court, ordering the Board . . .:
"a. to reinstate Petitioner Howard Gensler as a full-time tenured faculty member of Saddleback College[;] and
"b. to reimburse Howard Gensler for lost wages and benefits arising from this action[;]
"2. For Petitioner Howard Gensler's costs in this action, including attorneys' fees[;] "and
"3. For such other relief as the court considers just and proper." (Some capitalization omitted.) Respondents filed an answer to the petition.
III. FOLLOWING TRIAL ON THE PETITION, THE TRIAL COURT REMANDS THE MATTER FOR PEER REVIEW
After having taken the matter under submission on October 22, 2021, and after having fully considered the parties' evidence and written and oral arguments, the trial court entered a minute order dated December 6, 2021, stating: "A copy of the Court's Statement of Decision Re: Petition for Writ of Mandate is attached hereto and incorporated herein by reference."
In the court's attached statement of decision, dated December 6, 2021, the court discussed the parties' respective arguments but ultimately concluded: "[T]he court, although in its independent judgment is content with most of the conclusions of the ALJ, believes those conclusions must be reevaluated following a statutory peer review process conducted under Education Code § 87663(b) and (c) as specified by 'the standards and procedures established by the rules and regulations of the governing board.' [¶] The cause is therefore remitted to the respondents to include a peer review in petitioner's employment evaluation."
Respondents filed a motion for reconsideration, which the trial court denied.
On March 21, 2022, the trial court issued another minute order which identified the event type as "Chambers Work" without any party's appearance. (The record is not clear what prompted the court to issue this minute order.) The minute order essentially reiterated its prior order of December 6, stating:
"WRIT REMAND
"The above-entitled action came on for trial in the above-entitled court on October 22, 2021 in Department C-23, Honorable Derek W. Hunt judge presiding.
"Howard Gensler, petitioner, appeared in propria persona; and Dennis Walsh, Esq. and Lawrence Weiss, Esq. of Walsh &Associates appeared on behalf of respondents Board of Trustees of the South Orange County Community College District and the South Orange County Community College District.
"The administrative record having been prepared and presented to the court, briefs having been filed, and oral argument taken, the action was tried to the court on petitioner Gensler's petition for writ of mandate and respondents' answer thereto on October 22, 2021.
"On December 6, 2021 the court issued its written Statement of Decision thereon remitting the cause to respondents for further proceedings in accordance with the said Statement of Decision and the peer review process required by Education Code § 87663(b) and (c) as specified by 'the standards and procedure established by the rules and regulations of the governing board.
"NOW THEREFORE IT IS ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
"The cause is hereby remanded to respondents for further proceedings in accordance herewith." The minute order concludes with the signature of the trial judge.
IV.
AFTER THE TRIAL COURT REJECTS GENSLER'S MOTION FOR PREVAILING PARTY ATTORNEY FEES EXPLAINING NO JUDGMENT HAD YET BEEN ENTERED, GENSLER SERVES A "NOTICE OF ENTRY OF JUDGMENT" AND LATER FILES A NOTICE OF APPEAL
The register of actions shows Gensler filed a motion for attorney fees on February 9, 2022, to which the Board filed opposition; no documents filed in connection with this motion were included in the appellant's appendix on appeal.
The reporter's transcript contains the transcript of the April 8, 2022 hearing on the motion. At the hearing, the trial court began the hearing, stating: "This is the petitioner, Mr. Gensler's motion for attorney fees under CCP Section 1021.5. [¶] So this is the case, the writ petition in which I ruled that the cause should be remanded to the respondent for further proceedings in accordance with the Education Code section 87633(b) and (c). [¶] And let me make two points clear right now. [¶] First, it was a remand for further proceedings. It was not a judgment. In other words, at this point we have no idea at this stage who is going to ultimately prevail in this dispute." (Italics added.)
The trial court continued: "So let me start with a procedural aspect. And that's CCP section 1021.5. [¶] This is a statute that Mr. Gensler has relied on, and it says in its first sentence . . . [¶] 'A successful party' . . . may recover attorney fees . . . 'in any action which has resulted in the enforcement of an important right affecting the public interest.' . . . [¶] I think that's an overstatement at this stage to say that Mr. Gensler's success has been achieved. [¶] His original writ sought two outcomes: [¶] One, his reinstatement as a full-time, tenured faculty member. [¶] And two, reimbursement of the wages that he would have been paid if he were not terminated. [¶] He has not yet achieved any of those two objectives. [¶] The outcome of the hearing before me-or I simply sent it back to the respondents for consideration of that peer review element. And as far as I know, that's undecided."
After discussing whether attorney fees might be recoverable in this type of case, the court stated: "I think that those points could be argued at a later stage in the case. [¶] But notice, that third element, that assumes that there is a monetary recovery in the underlying action. Now, that could happen someday. As I say, this case isn't over. Mr. Gensler, if he is successful getting his wages reimbursed again, that might trigger that portion of the statute, but that hasn't happened yet. [¶] So although I'm very happy to hear from you, Mr. Gensler, my tentative ruling is to deny this, at least without prejudice, until we've played out our hand with a remand or if there's an appeal." The trial court later explained to Gensler "what I'm saying is that your dispute has not yet been successfully resolved in your favor." (Italics added.)
Inexplicably, the appellant's appendix contains a document prepared by Gensler entitled "Notice of Entry of Judgment" and dated April 28, 2022 which states: "Please take notice that on March 21, 2022, Orange County Superior Court Judge Derek W. Hunt issued a judgment in the above captioned action, ROA #147. A true and correct copy of the judgment is attached hereto, together with the December 6, 2021 Statement of Decision (ROA #118), and a Judicial Comment with a filing date of March 21, 2022 (ROA #155)." (Boldface and some capitalization omitted.) The purported "judgment" referenced in Gensler's notice of entry of judgment and identified in the notice as item No. 147 in the register of actions, is a copy of the court's March 21, 2022 minute order, quoted in full ante, which, as explained to Gensler at the April 8 hearing, was not a judgment but an order remanding the matter to respondents to conduct a peer review evaluation for the court's later consideration.
The appellant's appendix also includes a document that appears to have been created by Gensler that is identified in the appendix's table of contents and in the document's title as "Judgment." That document states three documents-the March 21, 2022 minute order, the court's statement of decision, and also an entry in the register of actions (dated March 21, 2022) stating "'Petition for Writ of Mandate Has Been Granted'"-"constitute the judgment" in this case.
"[T]he substance and effect of a decision, not the clerk's offered label in the register of actions, is the controlling consideration. [Citation.]" (Natomas Unified School Dist. v. Sacramento County Bd. of Education (2022) 86 Cal.App.5th 1013, 1027.) Here, the cited portion of the register of actions reflects the clerk's understanding that the petition had been granted which is directly in conflict with the trial court's statements regarding the ruling in the matter.
Gensler filed a notice of appeal from the March 21, 2022 "judgment" on June 23, 2022.
DISCUSSION
I. GENERAL OVERVIEW OF GOVERNING LEGAL PRINCIPLES
"The administrative mandamus statute, Code of Civil Procedure section 1094.5, authorizes judicial review of final administrative decisions resulting from hearings that are required by law. In determining whether to grant a writ of administrative mandamus, the trial court is instructed to consider 'whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion.' [Citation.] [¶] In general, an adverse ruling in a judicial proceeding is appealable once the trial court renders a final judgment. [Citations.] This general rule applies equally in administrative mandamus proceedings. An application for a writ of administrative mandamus is a 'special proceeding of a civil nature' governed by the provisions of part 3 of the Code of Civil Procedure. A final judgment in a special proceeding is appealable unless a statute expressly prohibits the appeal [citations]." (Dhillon, supra, 2 Cal.5th at p. 1115.)
II. DHILLON, SUPRA, 2 Cal.5TH 1109
The question presented in Dhillon, supra, 2 Cal.5th at page 1115 was whether the trial court's order on a petition for writ of administrative mandamus was a final judgment. The Supreme Court explained: "We have previously recognized that a judgment is final, and therefore appealable, '"'when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.'"' [Citations.] '"It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory."' [Citations.] 'We long have recognized a "well-established policy, based upon the remedial character of the right of appeal, of according that right in doubtful cases 'when such can be accomplished without doing violence to applicable rules.'"' [Citation.]" (Ibid.)
In Dhillon, the plaintiff, a thoracic surgeon with clinical privileges at two hospitals owned and operated by the defendant, requested the defendant appoint an ad hoc committee to review a complaint made by one of the plaintiff's colleagues against the plaintiff. (Dhillon, supra, 2 Cal.5th at p. 1112.) The defendant complied with the request and, after a committee's investigation, it submitted a report concluding that neither the plaintiff nor the complaining physician had behaved in a professional manner and recommended to the joint medical executive committee that both physicians either meet with a mediator or attend an anger management program. (Ibid.) The joint medical executive committee thereafter unanimously voted to require both physicians to attend a specified anger management class within eight months. (Ibid.) The plaintiff refused to attend, asserting the requirement was "'unfounded and unfair.'" (Ibid.) Over one year later, the defendant informed the plaintiff if he did not attend the class within one month, his clinical privileges would be suspended for a period just under 14 days. (Ibid.) The plaintiff requested a hearing with the defendant's judicial review committee (JRC), but the defendant rejected the plaintiff's request on the ground the plaintiff was not entitled to such a hearing. (Ibid.)
The plaintiff thereafter filed a petition for writ of administrative mandamus in the superior court. (Dhillon, supra, Cal.5th at p. 1112.) The petition, as later amended, alleged the defendant had violated its bylaws by imposing the discipline without a hearing before the JRC. (Id. at pp. 1112-1113.) In the petition, the plaintiff asked the court to (1) order a hearing before the JRC or some other appropriate body, (2) direct the defendant to vacate its imposition of discipline, (3) find the defendant's bylaws violate due process and are unenforceable where the imposed discipline affects the accused practitioner's "'clinical reporting and disclosure requirement,'" (4) order the defendant not to make disparaging comments about [the plaintiff] regarding the matter, and (5) authorize the plaintiff to file a lawsuit against the defendant for damages. (Id. at p. 1113.)
The trial court granted the writ petition in part. (Dhillon, supra, Cal.5th at p. 1113.) The court concluded the defendant's bylaws entitled the plaintiff to a hearing before the JRC or another appropriate body, and the plaintiff "'was deprived of . . . due process when [the defendant] . . . suspended his clinical privileges . . . without providing him a hearing.'" (Ibid.) It issued a peremptory writ directing the defendant to conduct such a hearing. (Ibid.) The court denied the petition for administrative mandamus in all other respects. (Ibid.) The defendant appealed and the Court of Appeal dismissed the appeal on the ground the order remanding the matter to the defendant was not a final, appealable order. (Ibid.)
The Supreme Court in Dhillon observed the Court of Appeal's dismissal order "deepened a long-standing conflict concerning the appealability of a trial court's order, on a petition for writ of administrative mandamus, remanding the matter for further proceedings before the administrative body." (Dhillon, supra, 2 Cal.5th at p. 1113.) The Supreme Court concluded: "[F]ocusing on the nature of the particular remand order before us, similar considerations lead us to conclude that the superior court's order partially granting Dr. Dhillon's writ petition was an appealable final judgment." (Id. at p. 1116, fn. omitted.)
The Supreme Court set forth several bases for its conclusion. (Dhillon, supra, 2 Cal.5th at pp. 1116-1117.) First, in its order, the trial court either granted or denied each of the plaintiff's claims: The trial court agreed with the plaintiff's reading of the defendant's bylaws, set aside the discipline the defendant had imposed, and remanded with instructions to hold a hearing before the JRC. (Ibid.)
Second, the trial court did not reserve jurisdiction to consider any issues. (Dhillon, supra, 2 Cal.5th at p. 1117.) The Supreme Court observed: "[A]s a formal matter, once the trial court issued the writ, nothing remained to be done in that court; no issue was then left for the court's '"future consideration except the fact of compliance or noncompliance with the terms of the first decree."' [Citations.]" (Ibid., fn. omitted.)
Third, the Supreme Court stated, "as a practical matter, unless [the defendant] has a right of immediate appeal, the trial court's interpretation of its bylaws may effectively evade review." (Dhillon, supra, 2 Cal.5th at p. 1117.) The Supreme Court explained: "If [the plaintiff] prevails at the JRC hearing, the bylaws provide for an internal appellate process whereby [the plaintiff] or the [medical executive committee] may seek review of the JRC's decision. But [the defendant]'s internal appeal board cannot overturn the superior court's determination that [the plaintiff] was entitled to the JRC hearing in the first place. If the administrative proceedings are again ultimately resolved adversely to [the plaintiff], [the defendant] would have no basis for seeking review of the decision. Thus, if [the plaintiff] chose not to seek mandamus review, that would be the end of the matter." (Id. at pp. 117-1118.)
III.
THE TRIAL COURT'S ORDER REMANDING THE MATTER TO RESPONDENTS TO CONDUCT A PEER REVIEW EVALUATION IS NOT AN APPEALABLE ORDER
Applying Dhillon to the instant case, we conclude the trial court's order remanding the matter to respondents to conduct a peer review evaluation did not constitute an appealable order. Here, in the petition containing six causes of action, Gensler sought the issuance of a writ under section 1094.5 of the Code of Civil Procedure ordering the Board to reinstate him as a full-time tenured faculty member of Saddleback College and to reimburse him for lost wages and benefits.
Unlike the trial court in Dhillon, the trial court here did not rule on the merits of the petition. The trial court did not decide whether the petition should be granted or denied and has not yet otherwise granted or denied any item of relief Gensler sought in the petition-e.g., the court has yet to decide whether or not Gensler is entitled to reinstatement and/or backpay.
Although Gensler had complained in the petition's first cause of action the respondents had not conducted a peer review evaluation, his position was that such an omission resulted in respondents' lack of jurisdiction to terminate his employment. He did not request a remand for a peer review evaluation to be conducted-that was the trial court's idea, ostensibly to collect more information to confirm what will be its ultimate ruling on the petition. In the conclusion of its statement of decision, the trial court states: "And so the court, although in its independent judgment is content with most of the conclusions of the ALJ, believes those conclusions must be reevaluated following a statutory peer review process ...." (Italics added.) In other words, the trial court stated it had reached some tentative conclusions but still needed to reevaluate those conclusions pending receipt of further information gleaned from the peer review evaluation on remand.
At the April 8, 2022 hearing on Gensler's motion for attorney fees, the trial court expressly stated its order remanding the matter "was not a judgment" and "at this time we have no idea at this stage who is going to ultimately prevail in this dispute." According to the trial court itself, all issues remained open and undecided until after the peer review evaluation was completed.
Furthermore, the trial court has not made a ruling interpreting respondents' bylaws or other such internal governing rules that could evade review. Instead, the remand order is based on the trial court's reliance on a statute. Furthermore, neither the trial court's minute orders nor the statement of decision includes a particular interpretation of the statute, section 87663. Instead, the trial court acknowledged the statute's existence and respondents' failure to conduct a peer review evaluation as provided by that statute and remanded the matter to respondents for such an evaluation to be conducted.
In short, the trial court's remand order failed the "'"general test, which must be adapted to the particular circumstances of the individual case"'" as set forth in Dhillon-"'"it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first degree, that decree is final."'" (Dhillon, supra, 2 Cal.5th at p. 1115; see Natomas Unified School Dist. v. Sacramento County Bd. of Education, supra, 86 Cal.App.5th at p. 1027 [holding trial court's ruling on petition for writ of administrative mandate was not a final judgment under the Dhillon standard and thus not appealable because it "neither ordered the full substantive relief that the District sought-including the District's requested '[j]udgment ordering the [County Board] to set aside the Decision'-nor resolved all issues except the fact of compliance or noncompliance"].)
The trial court's order therefore is not appealable. Consequently, we lack jurisdiction, and the appeal must be dismissed.
DISPOSITION
The appeal is dismissed. Respondents to recover costs on appeal.
WE CONCUR: GOETHALS, ACTING P.J. SANCHEZ, J.