Opinion
E051807
11-08-2011
TIM WEATHERS, Plaintiff and Appellant, v. CITY OF COLTON et al., Defendants and Respondents.
Law Offices of Granowitz, White and Weber, Bradley R. White and Steven R. Weber for Plaintiff and Appellant. Best Best & Krieger, John D. Higginbotham, Mark F. Lovell, and Kira L. Klatchko for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. CIVDS 918126)
OPINION
APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie, Judge. Affirmed.
Law Offices of Granowitz, White and Weber, Bradley R. White and Steven R. Weber for Plaintiff and Appellant.
Best Best & Krieger, John D. Higginbotham, Mark F. Lovell, and Kira L. Klatchko for Defendants and Respondents.
I. INTRODUCTION
Plaintiff and appellant Tim Weathers was terminated from his employment as a code enforcement officer with the City of Colton (the City) police department based on allegations he committed misconduct on the job. Weathers contested his termination pursuant to the the memorandum of understanding (the MOU) between the City and the San Bernardino Public Employees' Association (the SBPEA), of which Weathers was a member. Following a three-day arbitration, an arbitrator determined in a written decision that the City had "just cause" to terminate Weathers.
Weathers petitioned the trial court for a writ of administrative mandate, reversing the arbitrator's decision under Code of Civil Procedure section 1094.5. Respondentsdemurred on the ground the petition did not state a cause of action. They argued that the arbitrator's decision was "final and binding," and could only be reviewed under section 1286 et seq., not section 1094.5 et seq. The trial court agreed, sustained the demurrer without leave to amend, and entered a judgment dismissing the petition.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
In his petition, Weathers named the City and two individuals as respondents, namely, Bob Miller, the interim city manager and chief of police for the City, and Anthony Arroyo, the human resources director for the City. We refer to the City, Miller, and Arroyo collectively as respondents.
Weathers appeals, claiming the "plain meaning" of the MOU provides for review under "any applicable section of the Code of Civil Procedure, including" section 1094.5 et seq. We disagree.
We conclude the MOU is an agreement to submit appeals of employee suspensions, demotions, and dismissals to binding arbitration. Though the MOU uses the term "mediator," its terms plainly contemplate that all disciplinary appeals will be determined by arbitration, not negotiated mediation. And that is what happened here; an arbitrator found the City had just cause to terminate Weathers following a three-day arbitration and evidentiary hearing.
The MOU states: "The decision of the mediator is final and binding and is not subject to any administrative or judicial review except pursuant to the Code of Civil Procedure." (Italics added.) Contrary to Weathers's claim, this sentence does not mean the arbitrator's decision is reviewable under any provision of the Code of Civil Procedure, including section 1094.5 et seq. An arbitration decision or award is simply not reviewable under section 1094.5 et seq.; it is only reviewable under section 1286 et seq. (Zazueta v. County of San Benito (1995) 38 Cal.App.4th 106, 110 (Zazueta); Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 12-13 (Moncharsh).)
Because Weathers does not seek leave to amend his writ petition to seek judicial review of the arbitrator's decision under section 1286 et seq., we affirm the judgment dismissing his petition.
II. BACKGROUND
A. Factual Background
Weathers was employed by the City as a code enforcement officer in its police department from 1998 until December 22, 2008, when the City terminated his employment on misconduct grounds. As a classified civil service employee, Weathers was a member of the SBPEA, which represented Weathers and other City employees in collective bargaining with the City. (Gov. Code, § 3500 et seq.) Weathers contested his termination pursuant to the MOU between the City and the SBPEA at the time of his termination.
The operative MOU was in effect from July 1, 2004 to June 30, 2009.
Article I, section 5.9.B. of the MOU provided for a "Disciplinary Action Appeal Process," authorizing a permanent employee to appeal his or her disciplinary suspension, demotion, or dismissal "to a mediator." In order to ensure that the employee was "afforded 'due process,'" the City was required to "comply with Administrative Policy No. 4.05.250." (MOU, § 5.9.B.)
The MOU defines the term "mediation" as: "An attempt to bring about a peaceful settlement or compromise between disputants through the objective intervention of a neutral party."
A copy of Administrative Policy No. 4.05.250 is not included in the record.
Following the initiation of the appeals process, the parties were required to select a mediator, and the mediator was required to "render a decision in writing within 30 days of the close of the hearing or of his/her receipt of closing briefs, whichever is later." (MOU, § 5.9.B.) The next sentence of section 5.9.B. of the MOU states: "The decision of the mediator is final and binding and is not subject to any administrative or judicial review except pursuant to the Code of Civil Procedure."
An authorized representative of the SBPEA was to initiate the appeals process by writing to the city manager within 10 business days of receiving "the 'Order of Disciplinary Action'" against the employee.
In Weathers's appeal, the City and the SBPEA selected C. Chester Brisco to conduct what was for all intents and purposes an arbitration, not a mediation. Following a three-day evidentiary hearing, Brisco issued a three-page decision captioned, "Arbitration Opinion and Award" [¶] "In the Matter of the Arbitration Between City of Colton and San Bernardino Public Employees Association" [¶] "Grievant: Tim Weathers." In the decision, the arbitrator addressed two stipulated issues: (1) "Was Tim Weathers terminated for just cause?" and (2) "If not, what shall be the remedy?" The arbitrator concluded that Weathers was discharged for "just cause."
The arbitrator's decision states that "[a] three-day hearing was held before the undersigned arbitrator during which Mr. Weathers had full opportunity to hear the evidence against him and to make response."
In his decision, the arbitrator wrote: "[T]he evidence of Mr. Weathers'[s] misconduct, particularly his failure to be forthright and truthful, is abundant and persuasive." According to the decision, Weathers had repeatedly spent time during working hours at a massage parlor or acupressure business that had been raided by City police and that was suspected of engaging in prostitution. Weathers drove a City-owned vehicle to the business, and was reprimanded for spending time there during working hours. He was also placed on a two-year Performance Improvement Plan (PIP), because his supervisors were concerned about his productivity, which lagged significantly behind that of other City code enforcement officers. The PIP required Weathers to keep accurate records of his time, location, and his activities at each location during working hours. These records were to be kept in addition to Weathers's regular code enforcement activity log. Following the reprimand and PIP, Weathers continued visiting the acupressure business during working hours and failed to keep detailed records of his time.
The arbitrator also found that Weathers repeatedly failed to report for work on time, took excessive rest and meal breaks, and transported and visited with a woman in his City-owned vehicle during the work day. In sum, the arbitrator wrote: "The conclusion is inevitable that Weathers wasted a substantial amount of time during working hours, and after having been given every opportunity to change his habits he continued his slothful ways. Progressive discipline was applied and Weathers failed to respond. In that failure he has lost his right to remain a City employee." B. Procedural Background
Following the arbitrator's decision upholding his termination, Weathers filed the present writ petition, expressly seeking judicial review of the decision pursuant to section 1094.5. The petition alleges that respondents prejudicially abused their discretion in terminating him; the "mediator['s]" findings were not supported by the evidence adduced at the hearing; and the findings did not support the decision upholding his termination. The petition attached a copy of the MOU as exhibit A and the mediator's decision as exhibit B.
Respondents demurred on the ground the petition failed to state a cause of action. They argued the trial court was without jurisdiction to review the arbitrator's decision under section 1094.5, because the decision was a "final and binding" arbitration decision and, as such, was not subject to judicial review except pursuant to section 1286 et seq. Weathers opposed the demurrer, and respondents replied.
At the initial hearing on the demurrer, the trial court continued the matter and ordered the parties to provide supplemental briefing addressing whether, in entering into the MOU, the City and the SBPEA intended that employee disciplinary appeals would be determined by binding arbitration. The court said it was unclear whether the MOU was an agreement for binding arbitration because it used the term "mediation" and also said the mediator's decision was "reviewable."
Respondents filed a supplemental brief, accompanied by the declarations of Anthony Arroyo and Roger Crawford. Arroyo was the human resources manager for the City and was involved in negotiating the operative MOU on behalf of the City with the SBPEA. Arroyo averred that the parties intended all disciplinary appeals to be determined by final and binding arbitration. Arroyo's declaration included copies of the two prior MOU's in effect between July 1, 1998 and June 30, 2001 (the 1998 MOU), and July 1, 2001 and June 30, 2004 (the 2001 MOU). Crawford was an attorney who represented and advised the City concerning the Weathers arbitration. He averred that the proceedings before the arbitrator, C. Chester Brisco, "in all respects was that of an arbitration, not a mediation."
The 1998 MOU used the term "hearing officer" and states: "The findings and decision of the hearing officer are final and binding and not subject to any administrative or judicial review except pursuant to the Code of Civil Procedure Section 1286.2 or 1094.6." The 2001 MOU used the term "arbitrator" in place of "hearing officer" and states: "The decision of the arbitrator is final and binding and is not subject to any administrative or judicial review except pursuant to the [Code of Civil] Procedure Section 1282.2 [sic]." As discussed, the operative MOU uses the term "mediator" and states: "The decision of the mediator is final and binding and is not subject to any administrative or judicial review except pursuant to the Code of Civil Procedure." The operative MOU became effective on July 1, 2004, immediately following the 2001 MOU.
Weathers filed a supplemental brief in opposition to the demurrer. He also filed evidentiary objections to the declarations of Arroyo and Crawford, and to the 1998 and 2001 MOU's attached as exhibits to Arroyo's declaration. In addition, Weathers submitted the declaration of Bob Blough, the general manager of the SBPEA who negotiated the operative MOU with the City on behalf of the SBPEA. Blough disputed many of the statements in Arroyo's declaration, and averred that the SBPEA's objective in negotiating the operative MOU was to have the mediator's decision "be final and binding except pursuant to any applicable provision of the [Code of Civil Procedure]."
At the continued hearing on the demurrer, the court said it had not read any of the declarations because they could not be considered on a demurrer. The court sustained Weathers's evidentiary objections to the Arroyo and Crawford declarations, but took judicial notice of the 1998 and 2001 MOU's. The court said the 1998 and 2001 MOU's "weren't extremely helpful," however. The court sustained the demurrer without leave to amend. Looking to "the substance of what occurred," the court reasoned that Weathers's appeal was determined by arbitration, and as a matter of law, an arbitrator's decision is not reviewable under section 1094.5 The parties selected the arbitrator; he was not an agent of either party; evidence was presented; and a binding determination was made.
Following the trial court's order sustaining the demurrer, a judgment of dismissal was entered. Weathers timely appealed.
III. DISCUSSION
A. Standard of Review
A demurrer tests the legal sufficiency of the challenged pleading. (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869.) In reviewing an order sustaining a demurrer, we independently determine whether the facts alleged in the challenged pleading, and judicially noticeable facts, state a cause of action. (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1589; Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) The plaintiff bears the burden of demonstrating that the demurrer was erroneously sustained as a matter of law. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) B. Weathers's Contentions/No Extrinsic Evidence Considered
Weathers claims the court erroneously sustained respondents' demurrer to his writ petition, in which he sought review of the decision upholding his termination under section 1094.5, not section 1286. He argues that the "plain meaning" of the MOU shows it is not an agreement to submit disciplinary appeals to binding arbitration, and its terms expressly provide for judicial review of the "mediator's" decision "under any applicable provision of the Code of Civil Procedure." (Underlining omitted.)
Weathers also argues that the trial court improperly took judicial notice of the 1998 and 2001 MOU's and should not have considered them in ascertaining the parties' intent in entering into the operative MOU. He further argues, however, that if this court is inclined to consider the 1998 and 2001 MOU's on the question of the parties' intent in entering into the operative MOU, they support his position that the parties intended the MOU to provide that mediator's decisions determining disciplinary appeals would be reviewable under "any applicable provisions of the Code of Civil Procedure," including 1094.5.
We conclude respondents' demurrer was properly sustained without leave to amend. We base our analysis on Weathers's petition, the four-corners of the operative MOU, and the arbitrator's written decision upholding Weathers's termination. Like the trial court, we disregard the declarations of Arroyo, Crawford, and Blough. But unlike the trial court, we also disregard the terms of the two prior MOU's.
We believe the parties' mutual intent to submit disciplinary appeals to binding arbitration is evident based on the four-corners of the MOU. The MOU's terms plainly contemplate that disciplinary appeals will be determined by binding arbitration, not by negotiated settlement in mediation and not by administrative hearing. Further, Weathers's appeal was determined by arbitration. Accordingly, the arbitrator's decision in Weathers's appeal is not reviewable under section 1094.5 as a matter of law. C. Analysis
In his reply brief, Weathers argues that if this court deems it necessary to consider extrinsic evidence on the issue of the parties' intent, the matter should be remanded to the trial court so it may conduct an evidentiary hearing on the issue. For the reasons we explain, however, it is unnecessary to resort to extrinsic evidence to ascertain the parties' mutual intent.
The key question presented is a matter of contractual interpretation: whether the City and the SBPEA intended the MOU to constitute an agreement to submit disciplinary appeals to binding arbitration. If so, the arbitrator's decision is not reviewable under section 1094.5. Before we address this question, we briefly explain the difference between arbitrations, which are reviewable only under sections 1286.2 and 1286.6, and administrative decisions, which are reviewable under section 1094.5 et seq.
1. Arbitration and Administrative Decisions
An arbitration is generally understood to be "'"'[a] process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. Where arbitration is voluntary, the disputing parties select the arbitrator who has the power to render a binding decision.' [Citation.]" [Citations.] . . . "[A]lthough [an] arbitration can take many procedural forms, a dispute resolution procedure is not an arbitration unless there is [1] a third party decision maker, [2] a final and binding decision, and [3] a mechanism to assure a minimum level of impartiality with respect to the rendering of that decision." [Citations.]' [Citations.]" ( American Federation of State, County & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal.App.4th 247, 257-258 (American Federation).)
An arbitrator's decision is by definition "final and binding." (Moncharsh, supra, 3 Cal.4th at p. 9 ["'The very essence of the term "arbitration" . . . connotes a binding award.'"]; see also American Federation, supra, 126 Cal.App.4th at pp. 257-258 [MOU appeal procedure was not an agreement for binding arbitration because the hearing officer's decision was expressly made appealable under section 1094.5].) As such, an arbitrator's decision is subject to very limited judicial review under sections 1286.2 and 1286.6. (See Moncharsh, supra, at pp. 12-13, 25.) Under these provisions, "[c]ourts may not review either the merits of the controversy or the sufficiency of the evidence supporting the [arbitration] award." (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943.) This limited review "vindicates the intentions of the parties that the award be final . . . ." ( Moncharsh, supra, at p. 11.)
By contrast to arbitration decisions, administrative decisions are subject to more extensive judicial review under section 1094.5. (American Federation, supra, 126 Cal.App.4th at p. 259.) In resolving a petition for a writ of administrative mandamus, the trial court is authorized to "(1) examine whether the decision maker proceeded in excess of jurisdiction; (2) whether there was a fair trial; and (3) whether there was any prejudicial abuse of discretion because of a failure to proceed as required by law, the order or decision was not supported by the findings, or the findings were not supported by the evidence. The court is also authorized to consider the weight of the evidence." (Ibid.; § 1094.5, subds. (b), (c).)
Section 1094.5 provides that a writ of mandate may issue "for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer . . . ."
2. The MOU Constitutes an Agreement to Submit Disciplinary Appeals to Binding Arbitration
MOU's are binding agreements between municipalities and designated employee representatives. (See National City Police Officers' Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1278.) When the meaning of an MOU is in dispute and no extrinsic evidence is necessary to interpret its terms, we interpret its terms de novo, exercising our independent judgment and applying settled rules of contract interpretation. (Id. at pp. 1278-1279; Valencia v. Smyth (2010) 185 Cal.App.4th 153, 161-162 [questions of contract interpretation (with no extrinsic evidence) are matters of law].)
"The goal of contractual interpretation is to determine and give effect to the mutual intention of the parties." (Safeco Ins. Co. v. Robert S. (2001) 26 Cal.4th 758, 763.) "'When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible . . . .' (§ 1639.)" (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 525.) "'"As a rule, the language of an instrument must govern its interpretation if the language is clear and explicit. [Citations.]"'" (National City Police Officers' Assn. v. City of National City, supra, 87 Cal.App.4th at p. 1279.)
Here, the terms of the MOU are clear and explicit, and no extrinsic evidence is necessary to interpret its terms. Despite its use of the term "mediator" in section 5.9.B., the section governing disciplinary appeals, the terms of the MOU as a whole plainly contemplate that disciplinary appeals will be determined by binding arbitration, not by mediation or administrative decision. First, section 5.9.B. requires the City to comply with Administrative Policy No. 4.05.250 to ensure the employee is "afforded 'due process'" in the appeal proceeding.
See footnote 5, ante.
Further, the parties were required to select the mediator, bear their "own witness and attorney fees," and "bear equally" the "fees and expenses of the mediator and court reporter, if any." (MOU, § 5.9.B.) The mediator is to "render a decision in writing within 30 days of the close of the hearing or of his/her receipt of closing briefs, whichever is later." (Ibid.) Finally, section 5.9.B. states: "[T]he decision of the mediator is final and binding and is not subject to any administrative or judicial review except pursuant to the Code of Civil Procedure."
As indicated, administrative decisions are subject to extensive judicial review under section 1094.5 et seq. (American Federation, supra, 126 Cal.App.4th at p. 259.) If the parties had intended for disciplinary appeals to be decided by administrative decision rather than arbitration, we do not believe the MOU would have stated that the decision "is not subject to any administrative or judicial review except pursuant to the Code of Civil Procedure." (Italics added.) The parties' evident intent to limit judicial review as strictly as possible is in keeping with an intent to have the disciplinary appeals determined by arbitration, not administrative decision. Indeed, the restrictive language of the last sentence of section 5.9.B. of the MOU is consistent with having an arbitration award reviewed on the more limited grounds set forth in Code of Civil Procedure sections 1286.2 and 1286.6.
The parties' agreement to select the mediator for each "mediation"—and even their use of the term "mediator"—also indicates their intent to submit disciplinary appeals to arbitration, rather than to a hearing officer or other agent of the City. (See American Federation, supra, 126 Cal.App.4th at p. 258 [selection of third party decision maker is a hallmark of an arbitration]; cf. TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1369 (TG Oceanside) [hearing officer selected by city and its commission was their agent].) Most tellingly, the parties' willing participation in what was plainly a binding arbitration in Weathers's appeal shows they intended, in entering into the MOU, that disciplinary appeals would be determined by binding arbitration.
The central question on this appeal is whether the last sentence of section 5.9.B. of the MOU means that the parties intended the arbitrator's decision to be reviewable under any provision of the Code of Civil Procedure, including section 1094.5, as Weathers contends. The answer is plainly "no." Arbitration decisions are simply not reviewable under Code of Civil Procedure section 1094.5; they are only reviewable on the more limited ground set forth in Code of Civil Procedure sections 1286.2 and 1286.6. (Zazueta, supra, 38 Cal.App.4th at p. 110; Moncharsh, supra, 3 Cal.4th at pp. 12-13.)
Weathers's attempt to distinguish Zazueta is unavailing. There, a public safety officer appealed his termination and elected to submit the matter to arbitration, though he could have elected to have the board of supervisors determine his appeal. (Zazueta,
supra, 38 Cal.App.4th at pp. 109-110.) The arbitrator upheld his termination, and the officer petitioned the trial court for a writ of mandate overturning the arbitrator's decision under section 1094.5. (Id. at p. 109.) The appellate court upheld the judgment of dismissal, reasoning the officer elected to submit his appeal to arbitration, and "[j]udicial review of arbitration awards is limited to . . . section 1286 et seq." (Id. at p. 110, fn. omitted, citingMoncharsh, supra, 3 Cal.4th at pp. 12-13.) The court noted that the officer "could have chosen an administrative hearing before the board of supervisors followed by judicial review pursuant to . . . section 1094.5," but did not. (Zazueta, supra, at p. 111.)
Weathers argues Zazueta is distinguishable because: (1) here the MOU did not give him a choice to have his appeal determined in an administrative hearing; he had to elect arbitration; and (2) here the MOU provided that the "mediator's" decision was reviewable under "the Code of Civil Procedure," and the MOU in Zazueta provided for no judicial review whatsoever. He also argues that here "the MOU did not constitute a binding arbitration agreement because it specifically provided for judicial review."
These arguments fail to distinguish Zazueta. First, it does not matter that the MOU here did not give Weathers a choice between an arbitration and an administrative hearing. The MOU could have, but simply did not, allow employees a choice between having their disciplinary appeals determined by administrative hearing or arbitration. Further, the officer's choice to elect arbitration in Zazueta was not the basis of the court's decision. The fact the officer's appeal was determined by arbitration meant it was reviewable only under section 1286 et seq. Further, the arbitrator's decision upholding Weathers's termination is not reviewable under section 1094.5 simply because the MOU provides for judicial review "pursuant to the Code of Civil Procedure." Arbitrations and administrative hearings are distinct proceedings. And here, as in Zazueta, the appeals were determined by arbitration. This is the basis of Zazueta's conclusion that the arbitration decision upholding the officer's termination was reviewable only under section 1286 et seq.
Weathers's reliance on American Federation, supra, 126 Cal.App.4th 247 is also misplaced. There, the court concluded that the appeals procedure in the case before it was not an agreement to submit employee grievances to binding arbitration, because the MOU provided that "'[t]he decision of the [h]earing [officer can be appealed pursuant to . . . Section 1094.5.'" (Id. at p. 258.) The MOU here contains no such provision. Moreover, Weathers's appeal was required to be determined, and was in fact determined, by "final and binding" arbitration. In American Federation, by contrast, the MOU appeals procedure was not "final and binding," even though the MOU provided that the hearing officer's decision was "final and binding," because the MOU also provided that the decision was reviewable under section 1094.5. (American Federation, supra, at pp. 258-259 ["A hearing officer's decision is not final and binding where it is reviewable by a trial court under Code of Civil Procedure section 1094.5"].) That is not the case here.
Weathers's reliance on TG Oceanside, supra, 156 Cal.App.4th 1355 is similarly misplaced. There, the city denied a rent increase to a mobilehome park owner, and the owner appealed the city's decision to "an independent hearing officer." (Id. at pp. 1362-1363.) A hearing officer not affiliated with the city heard the appeal. (Id. at pp. 1363-1364.) A city ordinance provided: "'Any party dissatisfied with the hearing officer's decision may seek judicial review in the superior court.'" (Id. at p. 1369.) Dissatisfied with the hearing officer's decision, the owner petitioned the trial court for a writ of administrative mandate, without naming the hearing officer as a party. (Id. at p. 1364.) Weathers argues that he, like the owner in TG Oceanside, should be able to challenge the arbitrator's decision by a petition for administrative mandate, simply because the ordinance in TG Oceanside, like the MOU here, did not specify that the city's decision could be challenged by administrative mandamus. Not so.
In TG Oceanside, the parties did not dispute whether the owner could challenge the hearing officer's decision by administrative mandamus. Instead, the city claimed the hearing officer was an indispensible party to the owner's petition, and for that reason the petition should have been dismissed. (TG Oceanside, supra, 156 Cal.App.4th at pp. 1364-1369.) Both the trial court and the appellate court concluded that the hearing officer was not an indispensible party. Instead, he was an agent of the city and the City of Oceanside Manufactured Home Fair Practices Commission (the commission), which had denied the rent increase on behalf of the city. (Id. at pp. 1361, 1369.) The city ordinance required the commission to designate the hearing officer, and in that sense the hearing officer was an agent of the city and the commission. (Id. at p. 1369.) The ordinance also provided that the "hearing officer's decision 'will be a final administrative decision and there shall be no remand to the [C]ommission for further proceedings.'" (Id. at p. 1369, italics added.) Thus in TG Oceanside, it was undisputed that the hearing officer's decision was an administrative decision.
Weathers also claims, based on TG Oceanside, that the arbitrator's decision was "the equivalent of a decision" by the City, and for this reason it is reviewable under section 1094.5 We disagree. Here the arbitrator was selected by the City and the SBPEA; he was not an agent of the City. By contrast, the hearing officer in TG Oceanside was deemed an agent of the city and its commission because a city ordinance required the commission to designate the hearing officer. For that reason, the hearing officer was not an indispensible party to the owner's writ petition. (TG Oceanside, supra, 156 Cal.App.4th at p. 1369.)
Lastly, because Weathers does not seek leave to amend his petition to seek judicial review of the arbitrator's decision under section 1286 et seq., we affirm the judgment dismissing his petition.
IV. DISPOSITION
The judgment dismissing Weathers's petition for a writ of administrative mandate under section 1094.5 is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
McKinster
Acting P.J.
Richli
J.