Opinion
H035387
09-06-2011
JAMES WEISNER, Plaintiff and Respondent, v. SANTA CRUZ COUNTY CIVIL SERVICE COMMISSION, Defendant and Respondent; COUNTY OF SANTA CRUZ, Real Party in Interest and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. CV163520)
This case arises out of a public employee's termination and subsequent Civil Service Commission hearing.
Appellant is the County of Santa Cruz (County), James Weisner's former employer at the County's Buena Vista Landfill. Weisner's employment with the County was terminated after the County learned he violated County rules and Public Works Department policies. Weisner appealed the decision to the Santa Cruz County Civil Service Commission (Commission), which upheld the termination. Weisner filed a petition for writ of mandate with the superior court, which issued the writ and ordered the matter be reheard by the commission.
The County appeals the superior court's order granting Weisner's petition for writ of mandate. The County asserts the superior court improperly modified its original order, and limited the Commission's discretion on rehearing. In addition, the County asserts that despite the fact that no timely notice of appeal was filed as to the original judgment, it is subject to appellate review based on the new order's material modification.
STATEMENT OF THE FACTS AND CASE
Weisner worked at the County's Buena Vista Landfill for over seven years. At the same time, he owned and operated a construction hauling business. At three different times in 2008, Weisner and his employee used County employees and equipment to remove trucks full of construction materials from the landfill where Weisner worked.
As a result of these incidents, Weisner was investigated by the County. Following the investigations, the County dismissed Weisner for violations of County rules and Public Works Department policies. Weisner appealed his dismissal to the Commission.
In December 2008, following a two-day hearing, the Commission found there was just cause to terminate Weisner's employment. In particular, the Commission found there was evidence to support five charges against Weisner: (1) unauthorized use of public equipment; (2) unauthorized removal of supplies stored at the County facility; (3) personal business on County time; (4) not observing appropriate safety measures with respect to the public; and (5) making dishonest statements to supervisors and managers.
In April 2009, Weisner filed a petition for writ of mandate asking the superior court to set aside his termination, order Weisner reinstated with back pay, and for "other [relief] as the Court deems appropriate."
The court granted Weisner's writ petition, and issued its final statement of decision on on August 12, 2009. In it, the court concluded that there were only two findings by the Commission that had sufficient evidentiary support: (1) unauthorized use of public equipment; and (2) engaging in personal business on County time. The court found there was not substantial evidence to support the other of the Commission's findings. Finally, the court found that Weinser's termination was excessive punishment, and the Commission's decision to uphold Weisner's termination was an abuse of discretion.
Following the issuance of the statement of decision, the court entered its original order on the petition as follows: "The matter is hereby remanded to the Civil Service Commission to rehear evidence and determine appropriate discipline, if any, consistent with the court's Statement of Decision dated 8/11/09."
The County did not file a notice of appeal as to the original order.
On August 31, 2009, the Commission issued a notice to the parties of its intention to comply with the court's order, and schedule a new administrative hearing. In it, the Commission stated, "the Code of Civil Procedure [section] 1094.5, [subdivision] (f) provides that the judgment of the court shall not limit or control in any way the discretion legally vested in the Commission. Therefore, the full Commission intends to rehear this case in its entirety." The new hearing was scheduled for November 4, 2009.
On October 27, 2009, before the new hearing, Weisner filed a Motion for Order to Show Cause re: Contempt and Sanctions against the Commission. Weisner's basis for the motion was that the new hearing should be limited to the two findings the court found were supported by substantial evidence. The County opposed the motion.
Following a hearing on the motion on November 19, 2009, the court issued a new order on the original writ petition. The court treated Weisner's motion for an order to show cause "as a request to clarify the [Original] order and limit the County to consideration of the two issues on which I previously found there was substantial evidence in a future hearing."
As a result, the court issued the following new order on the writ petition: "The matter is hereby remanded to the Civil Service Commission to rehear evidence only on the charges of (1) unauthorized use of public equipment and (2) engaging in personal business on County time."
The County filed a notice of appeal of the new order.
DISCUSSION
The County asserts three main arguments in this appeal. First, the superior court exceeded its authority in modifying its original order granting Weisner's petition for writ of mandate, thereby limiting the remand to the two findings that the court determined were supported by substantial evidence. The second argument is that the new order violates Code of Civil Procedure section 1094.5, subdivision (f), because it interferes with the legal discretion of an administrative agency. Finally, the County asserts that because the modification of the original order was material and substantial, the entire judgment is subject to appellate review.
Court's Issuance of New Order
The County asserts the court's modification exceeded its authority, because it was done without a motion before it seeking such relief. In addition, the County asserts the modification improperly limited the Commission's discretion in violation of the provisions of Code of Civil Procedure section 1094.5, subdivision (f).
Court action Without a Motion
The County asserts the court lacked authority to "materially and improperly" modify the original order on its own motion.
While it is true that a court may not materially alter its judgment without a motion, (See Code of Civ. Proc. §§ 656-662.5, 663), a court does have inherent power " 'to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] . . . [Citation.] The court may correct such errors on its own motion or upon the application of the parties.' [Citation.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
Here, the court issued the new order to "clarify" the judgment. In particular, the new order added specificity to an otherwise general order. When viewed in context of the entire case, however, the new order is entirely consistent with the original order, and does not materially or improperly modify the judgment.
The original order stated: "The matter is hereby remanded to the Civil Service Commission to rehear evidence and determine appropriate discipline, if any, consistent with the court's Statement of Decision dated 8/11/09."
The statement of decision provides: "The only two findings which have sufficient evidentiary support are unauthorized use of public equipment; and engaging in personal business on County time. . . . [¶] There was not substantial evidence to support the Commission's findings on the other issues. . . . [¶] The Commission's decision, upholding the termination as supported by just cause, is therefore an abuse of discretion. . . . The matter is remanded to the Civil Service Commission for further hearing with regard to the issues the Petitioner made unauthorized use of public equipment and engaged in personal business on County time.'' (Emphasis added.)
The new order provides: "The matter is hereby remanded to the Civil Service Commission to rehear evidence only on the charges of (1) unauthorized use of public equipment and (2) engaging in personal business on County time."
When the new order is viewed in light of the statement of decision referenced in the original order, it in no way modifies the judgment. The new order specifically reflects the findings in the statement of decision. Therefore, the court's action was within its inherent authority, and did not require a motion from the parties seeking such relief. (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
Code of Civil Procedure section 1094.5The County argues the new order violates Code of Civil Procedure section 1094.5, because it limits the discretion of an administrative agency.
Specifically, the code provides: "The court shall enter judgment either commanding respondent to set aside the order or decision, or denying the writ. Where the judgment commands that the order or decision be set aside, it may order reconsideration of the case in the light of the court's opinion and judgment and may order respondent to take such further action as is specifically enjoined upon it by law, but the judgment shall not limit or control in any way the discretion legally vested in the respondent." (Code of Civ. Proc., § 1094.5, subd. (f).)
The basis of the County's argument on appeal is that because the new order limits rehearing on only two of the charges against Weisner, it limits the Commission's discretion in violation of Code of Civil Procedure section 1094.5. The County asserts that because the petition was granted, a rehearing on all of the charges should be conducted.
In finding that only two charges against Weisner were supported by substantial evidence, and remanding the matter for a rehearing on those charges, the court did not impermissibly limit the Commission's discretion. Here, the County ignores the distinction between discretion and charges. The court could not limit how the Commission was to find on the two charges, but it could limit the Commission to only consider the charges that were supported by substantial evidence. It is proper for a reviewing court to consider the evidence before the commission, including the penalty imposed, and remand the matter for rehearing and reconsideration of penalty based on the reviewing court's judgment. (See, e.g., Carroll v. Civil Service Commission of Kern County (1970) 11 Cal.App.3d 727, 733.)
Here, the court considered the evidence and determined that only two of the charges against Weisner were supported by substantial evidence. As such, the court's remand to the Commission to consider only those two charges when determining the severity of Weisner's penalty was proper, and did not limit the Commission's discretion under Code of Civil Procedure section 1094.5.
Entire Judgment Subject to Appellate Review
The County asserts that despite the fact that no notice of appeal was filed as to the original judgment in this case, it is still subject to appellate review, because the new order "materially and substantially modifies the original order."
"Changes which correct errors, mistakes and omissions made through inadvertence, but do not involve the exercise of the judicial function, are considered corrections of clerical errors that leave the original judgment intact." (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 744.)
As stated above, the issuance of the new order in this case did not materially modify the original order; rather, it provided specificity consistent with the statement of decision, and did not alter the original judgment. Such a change is merely a correction, and not a modification. Therefore, the original judgment remains in intact. (Stone v. Regents of University of California, supra, 77 Cal.App.4th at p. 744.)
"[A]n appeal must be taken from the original judgment if the change was a clerical one, and from the modified judgment if the change was material and substantial." (Stone v. Regents of University of California, supra, 77 Cal.App.4th at pp. 743-744.)
Here, because the new order did not modify the judgment, and the original judgment remains intact, the appeal of the merits of the court's decision in granting Weisner's petition for writ of mandate must have been taken from the original judgment. The original order in this case was filed on August 12, 2009, requiring that a notice of appeal be filed in the superior court within 60 days. (Cal. Rules of Court, rules 8.100, 8.104.) Here, the County did not file a notice of appeal of the original judgment within the 60 day period as required by the California Rules of Court. Therefore, the County's challenge of the judgment on the merits is untimely.
DISPOSITION
The order appealed from is affirmed.
RUSHING, P.J. WE CONCUR:
PREMO, J.
ELIA, J.