Allee v. Super Ct. CA4/2 ( 2021 )

Filed 4/21/21 Allee v. Super Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
RAGENA ALLEE,
Plaintiff and Appellant, E073590
v. (Super. Ct. No. RICCIVDS1720556)
THE SUPERIOR COURT OF OPINION
SAN BERNARDINO COUNTY,
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Chad W. Firetag, Judge.
Dismissed.
Peter Law Group, Arnold Peter and Eyal Farahan, for Plaintiff and Appellant.
Paul, Plevin, Sullivan & Connaughton, Fred M. Plevin, Corrie J. Klekowski and
Karyn R. Moore, for Defendant and Respondent.
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I.
INTRODUCTION
Ragena Allee’s former employer, the Superior Court of San Bernardino County
(SCSB), informed her that it intended to terminate her for allegedly violating SCSB’s
policies and the Fair Employment and Housing Act (Gov. Code, §§ 12950 et seq.;
FEHA). Within hours of receiving notice of SCSB’s intent to terminate her, Allee
resigned. SCSB accepted her resignation later that day and terminated her employment
the next day.
Allee later sued SCSB for declaratory relief, alleging that her resignation should
be rescinded based on the parties’ mistakes. In her deposition, Allee unequivocally
testified that she resigned only because she mistakenly thought she would lose her
retirement benefits if she unsuccessfully challenged SCSB’s decision to terminate her.
But in her declaration in support of her opposition to SCSB’s motion for summary
judgment, Allee stated that she resigned not only because she might lose her retirement
benefits if she did not resign, but also because she and SCSB mistakenly thought her
conduct violated SCSB’s policies and FEHA.
Relying on D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1(D’Amico), which allows trial courts to disregard the declaration of a party opposing
summary judgment if it clearly contradicts the party’s prior unequivocal deposition
testimony, the trial court disregarded Allee’s statements in her declaration that she
resigned because the parties mistakenly believed her conduct violated SCSB’s policies
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and FEHA. The court reasoned that those statements contradicted her deposition
testimony that she resigned only because she feared losing her retirement benefits.
Consistent with Allee’s deposition testimony, the trial court found that she resigned only
because she mistakenly thought she would lose her retirement if she did not resign, which
SCSB did not know when it accepted Allee’s resignation. The trial court therefore
granted SCSB’s motion for summary judgment because Allee’s unilateral mistake did not
justify rescinding her resignation.
Allee appealed. After we issued a tentative opinion, but before we held oral
argument, the parties informed us that they had reached a settlement and stipulated to
dismiss the appeal. We exercise our discretion to dismiss the appeal without reaching the
merits.
II.
FACTUAL AND PROCEDURAL BACKGROUND
SCSB received seven anonymous letters from its employees accusing Allee of
“‘bullying behavior and creating a hostile work environment.’” SCSB hired an attorney
to investigate the situation, who concluded that Allee “created an environment of fear,
permeated with apprehension, by being disrespectful, belittling employees, controlling
actions of the supervisors, and demonstrating pervasive abusive conduct.” The
investigator also found that Allee retaliated against an employee for participating in the
investigation.
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Because of the investigator’s findings and conclusions, SCSB proposed
terminating Allee. SCSB notified Allee of its proposal through a “Notice of Intent” letter
(NOI), which outlined the investigator’s findings and conclusions, and explained that
SCSB intended to terminate Allee. The NOI informed Allee that she had ten business
days to respond to the NOI. About three hours after receiving the NOI, Allee emailed
SCSB, stating she was resigning. Later that day, SCSB responded to Allee’s e-mail and
explained that “We received your notice of resignation and will process with an effective
date of tomorrow.” Allee was terminated the next day.
Allee later sued SCSB. After SCSB’s successful demurrers, Allee’s operative
Second Amended Complaint (SAC) asserted one claim for declaratory relief. In that
claim, Allee alleged that both she and SCSB mistakenly believed her conduct violated
SCSB’s Anti-Harassment and Complaint Procedure (SCSB’s anti-harassment policy) and
FEHA. She also alleged that a non-practicing attorney friend erroneously told her, and
thus she mistakenly believed, that she would lose her retirement benefits if she did not
resign and unsuccessfully challenged SCSB’s decision to terminate her. Allee therefore
sought rescission of her resignation based on the parties’ mistakes.
SCSB moved for summary judgment. SCSB argued that, despite the SAC’s
allegations, Allee testified in her deposition that she resigned only because she
mistakenly thought her retirement benefits were at risk unless she resigned. SCSB
argued it was therefore entitled to summary judgment because rescission of a contract
cannot stem from a party’s unilateral mistake, and it was undisputed that SCSB was
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unaware of Allee’s mistaken belief about her retirement benefits when it accepted her
resignation and terminated her.
In support of her opposition to SCSB’s motion for summary judgment, Allee
submitted a declaration in which she stated that she decided to resign not only because
she mistakenly feared she could lose her retirement benefits if she did not resign, but also
because the parties both mistakenly thought her conduct violated SCSB’s anti-harassment
policy and FEHA. SCSB objected to this portion of Allee’s declaration. SCSB argued
the trial court should disregard Allee’s declaration testimony that she resigned in part
because of the parties’ alleged mistaken belief that her conduct violated SCSB’s anti-
harassment policy and FEHA under D’Amico because it conflicted with her deposition
testimony that she resigned only because of her concern about losing her retirement
benefits.
The trial court agreed. The trial court found that SCSB asked Allee “in three
different ways” in her deposition why she resigned, and her “responses were clear and
unequivocal admissions” that she resigned only because she feared she might lose her
retirement benefits unless she resigned. Relying on D’Amico, the trial court disregarded
Allee’s conflicting statements in her declaration that she also resigned because the parties
mistakenly thought her conduct violated SCSB’s anti-harassment policy and FEHA. The
trial court thus granted summary judgment to SCSB because it was undisputed that SCSB
did not know about Allee’s concerns about her retirement benefits, and rescission
requires mutual mistake. Allee timely appealed.
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III.
REQUEST FOR DISMISSAL
An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater
(2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for
unreasonable delay in notifying appellate court that parties had settled and dismissed the
underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “[o]n
receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct
immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary.
Because the parties have settled and stipulated to dismiss the appeal, we grant their
request to dismiss the appeal.
IV.
DISPOSITION
The appeal is dismissed. Each side shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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