Assn. for L.A. Deputy Sheriffs v. County of L.A. ( 2023 )

Filed 7/27/23; Certified for Publication 8/18/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ASSOCIATION FOR B316067
LOS ANGELES DEPUTY
SHERIFFS et al., (Los Angeles County
Super. Ct. No. 19STCP05186)
Appellants,
v.
COUNTY OF LOS ANGELES et al.,
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David Sotelo and Mitchell L. Beckloff,
Judges. Reversed and remanded with directions.
Rains Lucia Stern St. Phalle & Silver, Jacob A. Kalinski
and Brian P. Ross for Appellants.
Miller Barondess, Mira Hashmall, Eleanor S. Ruth and
Lauren M. Brody for Respondents.
____________________________
Three former deputies of the Los Angeles County Sheriff’s
Department (department) were discharged from their
employment for alleged misconduct. The former deputies filed
administrative appeals with the Los Angeles County Civil Service
Commission (commission). While their appeals were pending,
the former deputies executed settlement agreements with
department personnel that purported to reinstate the former
deputies to employment. The County of Los Angeles (county)
thereafter refused to comply with these settlement agreements.
The former deputies and a labor union for department
personnel (collectively, appellants) filed suit against the county,
the Los Angeles County Board of Supervisors (board of
supervisors or board), the department, the Los Angeles County
Sheriff (sheriff), the Los Angeles County Counsel (county
counsel), and the Director of Personnel for the County of Los
Angeles (director of personnel) (collectively, respondents).
Appellants sought enforcement of the settlements through
mandamus, breach of contract, and promissory estoppel claims.
They also requested a declaration that the county’s rejection of
the settlements is unlawful, and that the county’s supposed
blanket refusal to settle disciplinary cases against department
employees violates the due process rights of labor union
members.
The trial court sustained respondents’ demurrers to
appellants’ pleading without leave to amend. Among other
things, the court ruled the settlement agreements are void
because county counsel did not approve them, and section 21 of
the county charter (section 21) confers upon county counsel
“exclusive charge and control of all civil actions and proceedings
in which the County or any officer thereof, is concerned or is a
2
party.” (Fn. omitted.) Appellants seek review of the ensuing
judgment of dismissal.
On appeal, we hold that section 21 of the charter does not
grant county counsel exclusive authority to settle appeals of
discipline that are pending before the commission. Under the
original version of the charter, which included section 21, 1 the
commission did not hear appeals from discipline of county
employees. Further, the grammatical structure of the phrase
“civil actions and proceedings” in section 21 indicates county
counsel’s exclusive authority extends only to civil actions and
civil proceedings. This conclusion is supported by provisions of
the Code of Civil Procedure that existed when the original
charter was drafted and ratified, and by subsequent Attorney
General opinions. Respondents fail to show that the drafters and
ratifiers of the original charter intended to grant county counsel
exclusive charge and control of later-invented administrative
appeals of discipline, or that subsequent amendments to the
charter were intended to provide this exclusive authority to
county counsel.
Notwithstanding our construction of section 21, we
conclude the trial court did not err in sustaining the demurrers to
the contract and mandamus claims because appellants have not
demonstrated that the sheriff and his subordinates are
authorized to bind the county to settlements of appeals before the
commission. Furthermore, appellants fail to show that despite
this defect, they can recover on their promissory estoppel and
declaratory relief causes of action.
1All references to sections in a charter are to the
Los Angeles County Charter unless provided otherwise.
3
We also conclude that with the exception of the portion of
appellants’ declaratory relief cause of action that is premised on
an alleged procedural due process violation, the trial court erred
in denying appellants leave to amend. Given that the trial court
was reviewing appellants’ first pleading and that appellants
could potentially discover the legal basis (if any) for the
department’s alleged long-standing apparent belief that its
personnel have authority to settle commission appeals on their
own (i.e., without the consent of other county officials), we
conclude that allowing appellants to file an amended pleading
would not be an exercise in futility.
We thus reverse the trial court’s judgment of dismissal and
remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND 2
We summarize only those facts pertinent to our disposition
of this appeal.
2 Our Factual and Procedural Background is derived in
part from undisputed aspects of the trial court’s rulings and
admissions made by the parties in their filings. (See Baxter v.
State Teachers’ Retirement System (2017) 18 Cal.App.5th 340,
349, fn. 2 [utilizing the summary of facts provided in the trial
court’s ruling]; Standards of Review, post [noting that the trial
court’s orders and judgments are presumed correct]; Artal v.
Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and
argument . . . are reliable indications of a party’s position on the
facts as well as the law, and a reviewing court may make use of
statements therein as admissions against the party.’ ”].)
4
1. The verified petition for writ of mandate and
complaint
On December 5, 2019, appellants filed their verified
petition for writ of mandate and complaint (petition/complaint). 3
Deputy John Doe I, Deputy John Doe II, and Deputy Jane Doe
are former deputies of the department (collectively, the deputy
appellants). “Association for Los Angeles Deputy Sheriffs
(‘ALADS’) . . . is[ ] a recognized employee organization as defined
in the Meyers-Milias-Brown Act [citation] representing sworn
non-management peace officers employed by the Department and
the County District Attorney’s Office with regard to all matters
concerning wages, hours and working conditions.” ALADS
brought suit “on behalf of all of its represented employees.”
In the petition/complaint, each of the three deputy
appellants alleges one cause of action for writ of mandate (the
first, fourth, and seventh causes of action), one cause of action for
breach of contract (the second, fifth, and eighth causes of action),
and one cause of action for promissory estoppel (the third, sixth,
and ninth causes of action). The tenth cause of action for
declaratory relief is brought on behalf of ALADS and the deputy
appellants.
It appears that in or about 2017, the deputy appellants
were served with letters of intent to be discharged from
employment. The deputy appellants participated in
predeprivation hearings held in 2017 pursuant to Skelly v. State
3 The remainder of Factual and Procedural Background,
part 1 summarizes certain allegations from the
petition/complaint. We express no opinion as to the veracity of
these averments.
5
Personnel Bd. (1975) 15 Cal.3d 194 (Skelly), and were
subsequently discharged from employment for alleged
misconduct. 4 Each deputy appellant filed an appeal of his or her
discharge with the commission.
In 2019, while their respective appeals were pending, each
deputy appellant entered into a settlement agreement with a
chief at the department, the terms of which purported to reduce
the discipline imposed and reinstate the deputy appellant’s
employment. Respondents thereafter refused to comply with the
terms of the settlements. Although the petition/complaint does
not detail the circumstances under which Deputy John Doe I
became aware that respondents “refused . . . to reinstate [him] to
his employment with the County and to provide him with all
emoluments of employment,” the pleading alleges that
approximately two months after their settlements were executed,
Deputy John Doe II and Deputy Jane Doe were “advised” that
“County Counsel and/or . . . [the] Director of Personnel and/or . . .
[the] Board of Supervisors vetoed” their settlements.
In their appellate brief, respondents assert that the
settlement “agreements were not [in fact] approved by County
Counsel or the Board[ of Supervisors,]” and appellants tacitly
concede that point by failing to dispute it in their reply. (See
4 (See Chaplin v. State Personnel Bd. (2020)
54 Cal.App.5th 1104, 1109, fn. 2 [“Skelly [v. State Personnel Bd.
(1975) 15 Cal.3d 194,] requires that civil service employees be
given notice of proposed disciplinary action, the reasons for the
action, a copy of the charges and the written materials upon
which they are based, and an opportunity to respond either orally
or in writing. [Citation.] A ‘Skelly hearing’ refers to the
employee’s opportunity to respond, and it has been described as
an ‘informal probable-cause-type proceeding.’ ”].)
6
Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90
(Rudick) [concluding that the appellants made an implicit
concession by “failing to respond in their reply brief to the
[respondent’s] argument on th[at] point”].) Appellants also do not
contest respondents’ representation that the deputy appellants’
appeals were still pending before the commission when they filed
their petition/complaint. (See Rudick, at pp. 89–90.)
2. The trial court’s rulings sustaining respondents’
demurrers, the judgment, and appellants’ notices of
appeal
The matter was initially assigned to the writs department
of the trial court. Respondents demurred to the
petition/complaint. The trial court sustained the demurrer,
without leave to amend, as to the three causes of action for
mandamus, to wit, the first, fourth, and seventh causes of action.
The court ruled that appellants had “failed to state a claim for a
writ of traditional mandamus without regard to a substantive
determination concerning the validity of the settlement
agreements.” The court reasoned, “[I]t is well settled ‘mandamus
is not an appropriate remedy to enforce a contractual obligation
against a public entity’ ” because “breach of contract is an
adequate remedy at law, and the duty which mandamus enforces
is not the contractual duty of the entity, but the official duty of its
officer or board.” After the court sustained this initial demurrer,
the case was reassigned to the civil department of the trial court.
Respondents then filed a demurrer in the trial court to
appellants’ remaining causes of action. The trial court sustained
the demurrer on the remaining causes of action without leave to
7
amend. 5 In support of its decision, the trial court agreed with
respondents that only the board of supervisors or county counsel
could settle appeals before the commission. With regard to the
board of supervisors’ authority, the court observed that under
Government Code section 25203, “the Board ‘shall direct and
control the conduct of litigation in which the county, or any public
entity of which the board is the governing body, is a party.’ ”
(Quoting Gov. Code, § 25203.)
The trial court also agreed with respondents that section 21
establishes that the department lacked authority to enter into
the settlements. In pertinent part, section 21 provides: “The
County Counsel shall represent and advise the Board of
Supervisors and all County, township and school district officers,
in all matters and questions of law pertaining to their duties, and
shall have exclusive charge and control of all civil actions and
proceedings in which the County or any officer thereof, is
concerned or is a party.” (Fns. omitted.) (Italics added.) In
construing this provision, the trial court found persuasive
respondents’ assertion that “the use of ‘proceedings’ [in
section 21] is meant to indicate matters distinct from ‘civil
actions,’ such as administrative proceedings like [appellants’]
appeal[s] to the Commission.”
5 In its ruling on the demurrer, the trial court took judicial
notice of various documents submitted by the parties, including
the Los Angeles County Civil Service Rules (civil service rules)
and a 2016 annotated edition of the charter published by the
county (2016 annotated charter). We also consider these two
documents in deciding this appeal. (See Standards of Review,
post [noting that in reviewing an order sustaining a demurrer, an
appellate court considers matters judicially noticed by the trial
court].)
8
The trial court rejected appellants’ argument that the term
“ ‘proceedings’ ” in section 21 of the charter “does not refer to
administrative appeals,” but instead refers to civil matters such
as “petitions to compel or confirm arbitration or petitions for
mandamus.” The court found such matters “can also be defined
as civil actions,” and “there must be a difference between ‘civil
actions’ and ‘proceedings’ as used in the Charter.” The trial court
further concluded that sections 34 and 47.5 of the charter and
rule 4.19 of the civil service rules utilize the term “proceedings” to
refer to “matters before the Commission . . . .” The court opined
that “[t]he most logical construction is that these Commission
proceedings are the same proceedings found in . . . [section] 21.”
Given its conclusion that “the settlement agreements are
void as only the Board or the County Counsel can authorize [the]
settlements,” the trial court sustained the demurrer to
appellants’ breach of contract causes of action. The court further
concluded that it “cannot use promissory estoppel to force
[respondents] to uphold void settlement agreements,” nor could
the court “grant the declaratory relief requested by [appellants].”
On August 23, 2021, the trial court entered a judgment of
dismissal in accordance with its rulings on respondents’
demurrers. On October 12, 2021, ALADS appealed the judgment.
On November 10, 2021, the deputy appellants filed a notice of
cross-appeal of the judgment.
3. Our request for supplemental briefing and the
parties’ responses thereto
Oral argument was held on February 21, 2023. At oral
argument, we asked the parties to provide supplemental briefing
on three questions:
9
1. What, if any, legislative history materials
reveal the drafters’ or voters’ intent in enacting
the relevant provisions of the Los Angeles
County Charter that would assist the Court’s
interpretation of those provisions?;
2. Starting at what point in the Sheriff’s
Department’s (or other County departments’)
disciplinary processes is County Counsel’s
approval of the settlement agreements
required?;[ 6] and
3. Is the Sheriff or his chief authorized to execute
settlement agreements on the County’s behalf?
Thereafter, respondents filed a supplemental brief,
appellants filed a response thereto, and respondents filed a
supplemental reply brief. We granted respondents’ request for
judicial notice of the annotated version of the county charter
published by the county in 1919 (1919 annotated charter). In
addition, we granted appellants’ request for judicial notice of
“Excerpts for the Manual of Policy and Procedures of the
6 Respondents frame the second question in the manner
shown in the textual sentence accompanying this footnote. On
the other hand, appellants assert we did not “merely ask[ ] when
County Counsel’s involvement was required for disciplinary
proceedings that lead to discharge,” but we instead asked for
briefing regarding the extent of county counsel’s involvement in
the sheriff department’s (and other department’s) “administrative
proceedings generally . . . .” Because we ultimately conclude that
section 21 does not grant county counsel exclusive power to settle
disciplinary appeals before the commission (see Discussion,
part A, post), we need not resolve the parties’ dispute concerning
the scope of our second question.
10
Los Angeles County Sheriff’s Department, dated
October 26, 2022” and two opinions issued by the Attorney
General.
We deferred ruling on certain of respondents’ requests for
judicial notice. We address those requests below. (See
Discussion, parts A.2.b & B, post; Disposition, post.)
STANDARDS OF REVIEW
“We independently review the ruling on a demurrer and
determine de novo whether the pleading alleges facts sufficient to
state a cause of action.” (Santa Ana Police Officers Assn. v. City
of Santa Ana (2017) 13 Cal.App.5th 317, 323 (Santa Ana Police
Officers Assn.).) “[W]e accept as true the well-pleaded allegations
in [the] . . . complaint. ‘ “We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law. [Citation.] . . . . ” [Citation.]’ . . . .
[Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We
also consider “matters of which judicial notice can and has been
taken.” (See Santa Ana Police Officers Assn., at p. 323.) “We
review the denial of leave to amend for abuse of discretion,
asking whether there is ‘a reasonable possibility that the
complaint can be cured by amendment.’ [Citation.]” (See Nede
Mgmt. Inc. v. Aspen American Ins. Co. (2021) 68 Cal.App.5th
1121, 1129.)
“ ‘A judgment or order of a lower court is presumed to be
correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.’ [Citation.]” (Thompson v.
Asimos (2016) 6 Cal.App.5th 970, 981.) Thus, “ ‘ “it is the
appellant’s responsibility to affirmatively demonstrate error” ’ ”
by “ ‘ “supply[ing] the reviewing court with some cogent argument
supported by legal analysis and citation to the record.” ’
11
[Citation.]” (See Los Angeles Unified School Dist. v. Torres
Construction Corp. (2020) 57 Cal.App.5th 480, 492, 497;
Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277
(Hernandez).) The appellant bears this burden of rebutting the
presumption of correctness accorded to the trial court’s decision,
regardless of the applicable standard of review. (See Los Angeles
Unified School Dist., at p. 492 [noting that these principles apply
to “ ‘ “an appeal from any judgment” ’ ”]; see also Orange County
Water Dist. v. Sabic Innovative Plastics US, LLC (2017)
14 Cal.App.5th 343, 368, 399 [indicating that an appellant
must affirmatively show the trial court erred even if the de novo
standard of review applies].)
Additionally, “[w]hen the error is one of state law only, it
generally does not warrant reversal unless there is a reasonable
probability that in the absence of the error, a result more
favorable to the appealing party would have been reached.”
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, citing
People v. Watson (1956) 46 Cal.2d 818, 835.) An appellant bears
the burden of satisfying this state law prejudice standard. (See
Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 532–533
[discussing the Watson standard]; see also Parkford Owners for a
Better Community v. County of Placer (2020) 54 Cal.App.5th 714,
721 [“[T]he ultimate burden of demonstrating reversible error is
always on the appellant[,]” italics added].)
DISCUSSION
We first determine whether the trial court properly
construed section 21 because it is the central issue in this appeal.
We hold that section 21 does not confer upon county counsel
exclusive authority to settle appeals of discipline decisions
pending before the commission.
12
Nevertheless, appellants have failed to demonstrate that
the sheriff and his chiefs were authorized to execute on the
county’s behalf the settlement agreements at issue here. For that
reason, the trial court did not err in sustaining the demurrers to
appellants’ claims for breach of contract and mandamus. We
reject appellants’ contention that even if the settlement
agreements were invalid, we should nonetheless reverse the
order sustaining the demurrer on their causes of action for
promissory estoppel and declaratory relief.
Given (a) our conclusion that section 21 does not confer
upon county counsel exclusive authority to settle appeals before
the commission, and (b) the fact that the department has
apparently taken the position that its personnel may execute
these settlements without approval of other county officials, we
conclude there is a reasonable possibility that appellants could
amend their initial petition/complaint to establish that the sheriff
and his subordinates have that authority. Respondents fail to
demonstrate that affording appellants an opportunity to amend
would be an idle act. Accordingly, we conclude the trial court
abused its discretion in denying appellants leave to amend as to
their contract, mandamus, and estoppel claims. We also hold
appellants should be granted leave to replead their declaratory
relief cause of action, except insofar as it is predicated on their
legally defective procedural due process theory.
A. Section 21 of the County Charter Does Not Confer
Upon County Counsel Exclusive Authority to Settle
Appeals Before the Commission
The 1919 annotated charter indicates the following: (1) the
original version of the charter was prepared by the board of
freeholders on September 24, 1912, (2) the voters of the county
13
ratified the charter on October 5, 1912, (3) the charter was
approved by the Legislature on January 29, 1913, and (4) the
charter went into effect on June 2, 1913. 7
Section 21 appears in the original version of the county
charter. Although the charter has been amended several times,
the original text of section 21 remains unchanged. Section 21
provides in full: “The County Counsel shall represent and advise
the Board of Supervisors and all County, township and school
district officers, in all matters and questions of law pertaining to
their duties, and shall have exclusive charge and control of all
civil actions and proceedings in which the County[ 8] or any officer
thereof, is concerned or is a party. He shall also act as attorney
for the Public Administrator in the matter of all estates in which
such officer is executor, administrator with the will annexed, or
administrator, and the County Counsel shall, in every such
matter, collect the attorney’s fees allowed therein by law and pay
the same into the County Treasury.” (Fns. omitted.)
On appeal, the parties offer competing interpretations of
section 21. Appellants maintain county counsel’s approval is not
“required for settlements of pending administrative appeals”
because “the word ‘proceedings’ in the phrase ‘civil actions and
proceedings’ [in section 21] does not include pending
7 The 1919 annotated charter indicates that Article XI,
section 7 ½ of the 1911 version of our state’s constitution
authorized “qualified electors” to elect “[a] board of fifteen
freeholders” for the purpose of proposing a county charter. The
1919 annotated charter also contains the text of the original
charter.
8 Although the 1919 annotated charter employs the word
“country” instead of “County” here, this is a typographical error.
14
administrative appeals before th[e] Commission.” Conversely,
respondents assert “ ‘proceedings’ as used in the Charter includes
Appellants’ administrative appeals before the Commission.” 9
Before turning to the substance of the parties’ arguments,
we acknowledge the legal principles governing our analysis. “The
same rules of statutory interpretation that apply to statutory
provisions also apply to local charter provisions.” (Giles v. Horn
(2002) 100 Cal.App.4th 206, 221 (Giles).) “When construing a
statute, ‘our goal is “ ‘to ascertain the intent of the enacting
legislative body so that we may adopt the construction that best
effectuates the purpose of the law.’ ” ’ [Citation.]” (People v.
Manzo (2012) 53 Cal.4th 880, 886.) Put differently, our objective
is to “ ‘ “arriv[e] at the true [legislative] intent existing at the
time the legislation was enacted.” [Citation.]’ [Citations.]” (See
People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2005)
37 Cal.4th 707, 724–725 (People ex. Rel. Lockyer); see also Scalia
& Garner, Reading Law: The Interpretation of Legal Texts
(2012) p. 78 [explaining that under the “Fixed-Meaning” canon of
construction, “[w]ords must be given the meaning they had when
the text was adopted,” boldface omitted].)
In rejecting appellants’ argument that the “proceedings”
referenced in section 21 do not include disciplinary appeals before
9 Although respondents observe that “County Counsel
serves as the County’s legal representatives [sic] in all legal
issues under the first clause” of section 21, they do not claim this
clause confers upon county counsel the exclusive authority to
settle matters pending before the commission. Rather,
respondents rely upon the text conferring upon county counsel
“exclusive charge and control of all civil actions and proceedings
in which the County or any officer thereof, is concerned or is a
party.” (Fns. omitted.)
15
the commission, the trial court cited sections 34 and 47.5 for the
proposition that “the Charter refers to matters before the
Commission as proceedings.” In particular, the current version of
section 34 provides in pertinent part: “The Commission shall
propose and, after a public hearing, adopt and amend rules to
govern its own proceedings.” (Italics added.) Further, as relevant
here, section 47.5(d) of the current version of the charter states:
“In the event of any . . . strike [of the sort delineated elsewhere in
section 47.5], it shall be the duty of the Chief Administrative
Officer or appropriate appointing authority to identify any
employee of the County under his jurisdiction who is in violation
of the provisions of this Section [(e.g., an employee who
participated in said strike)], and to initiate discharge proceedings
against such employee in accordance with the applicable
provisions of this Charter.” (Italics added.) The court also found
that interpreting both “ ‘civil actions’ and ‘proceedings’ ” as
referring only to “civil matters . . . would make the latter
superfluous.”
The trial court’s interpretation of the county charter is
subject to de novo review. (See Giles, supra, 100 Cal.App.4th at
p. 220.) As we explain below, we conclude the trial court’s
interpretation of section 21 of the charter is erroneous. 10
Disciplinary appeals before the commission did not exist when
the original version of the charter was enacted. Further, the
grammatical structure of section 21 and certain provisions of the
10 We do not fault the trial court for failing to consider the
import of the original version of the charter. It does not appear
that when the court ruled upon respondents’ demurrer to the
contract, estoppel, and declaratory relief causes of action, either
side had provided the court with the original text of the charter.
16
Code of Civil Procedure and opinions of the Attorney General
indicate that section 21 conferred upon county counsel “exclusive
charge and control” of only civil matters in which the county or
any officer thereof was concerned or was a party. (Fns. omitted.)
Respondents, moreover, have not directed us to any
evidence that the board of freeholders and the voters who ratified
the original charter intended for section 21 to encompass new,
later-developed types of proceedings in which the county or any
officer thereof would be concerned or a party. Respondents also
have not shown that the board of supervisors and the voters
intended to expand the scope of county counsel’s authority in the
course of amending charter provisions relating to the
commission’s responsibilities. Accordingly, we hold that
section 21 does not clothe county counsel with exclusive authority
to compromise disciplinary appeals that are pending before the
commission.
1. Under the original version of the county charter,
section 21 did not grant county counsel exclusive
charge and control of disciplinary appeals before the
commission
First, we determine whether under the original charter, the
commission heard appeals of discipline imposed on county
employees. Next, we analyze the grammatical structure of
section 21 and other evidence probative of the drafters’ and
voters’ legislative intent concerning that provision.
17
a. The original version of the county charter
did not authorize the commission to adjudicate
disciplinary appeals
Respondents do not direct us to any provision of the
original iteration of the county charter that granted the
commission authority to hear appeals of discipline. Nor does it
appear that any portion of the original charter could be construed
as imposing that responsibility on the commission.
For instance, none of the provisions in Article IX, entitled
“Civil Service,” required the commission to review discipline
imposed on a county employee. In particular, and in contrast to
the current version of section 34 on which the trial court relied,
that original provision did not authorize the commission to “serve
as an appellate body[,]” although it did indicate that matters
before the commission were “proceedings . . . .” 11
Similarly, when the original section 34 listed the subject
matter of the “rules for the classified service” that the
commission was obligated to “prescribe, amend and enforce[,]”
none included hearings on appeals of discharges or reductions of
employees. Rather, section 34(13) required the commission to
issue rules providing “[f]or discharge or reduction in rank or
11 Specifically, section 34 originally provided in pertinent
part: “The Commission shall prescribe, amend and enforce rules
for the classified service, which shall have the force and effect of
law; shall keep minutes of its proceedings and records of its
examinations and shall, as a Board or through a single
Commissioner, make investigations concerning the enforcement
and effect of this Article and of the rules and efficiency of the
service. It shall make an annual report to the Board of
Supervisors.”
18
compensation after appointment or promotion is complete, only
after the person to be discharged or reduced has been presented
with the reasons for such discharge or reduction specifically
stated, and has been allowed a reasonable time to reply thereto in
writing.” This provision also stated, “The reasons and the reply
must be filed as a record with the Commission.” Other items in
section 34’s list required the commission to prescribe rules
governing the administration of the civil service system but did
not authorize the commission to hear disciplinary appeals. For
instance, section 34(2) required the commission to create rules
“[f]or open, competitive examinations to test the relative fitness
of applicants for such positions[,]” and section 34(3) called for the
commission to promulgate rules “[f]or public advertisement of all
examinations.”
In contrast, in the current version of the charter, the
subject matter of the civil service rules appears in section 35,
rather than in section 34. Section 35(6) requires that these rules
provide for “Civil Service Commission hearings on appeals of
discharges and reductions of permanent employees.” 12
Additionally, the trial court relied upon section 47.5(d)’s
employment of the term “proceedings” to support its conclusion
that appeals of disciplinary matters before the commission
constitute “proceedings” subject to county counsel’s exclusive
12 The original version of section 35 did not identify the
subject matter of the civil service rules, but instead granted the
commission the power to “suspend competition” for certain
“position[s] requiring peculiar and exceptional
qualifications . . . .” Like the original section 34, section 35 did
not obligate the commission to hear appeals on discharges and
reductions of employees.
19
charge and control for the purposes of section 21. That provision
was not added to the charter until 1982.
We acknowledge that section 39 of the original charter
authorized “any elector of the county” to submit to the
commission “[c]harges against any person in the classified
service[,]” and insofar as “[s]uch complaint” sought removal of
“any person in the classified service of the county” who was a
“holder of any elective or appointive county or township office,” a
portion of section 50 required the commission to “act[ ] upon” that
elector’s complaint “within twenty days after such filing.” It
appears that if the commission did not remove the employee
within that timeframe, then section 50 allowed the complaining
elector to petition for the recall of that holder of elective or
appointive office. Furthermore, section 34(15) authorized the
commission to “dismiss from the service those [employees] who
f[ell] below [a] standard of efficiency established” by the “bureau
of efficiency . . . .” 13
Section 39, section 50, and section 34(15) do not establish
that the commission served as a forum for appeals of employee
discipline. Instead, they provide that the commission was acting
as the initial decisionmaker, and not an appellate body, in the
unique circumstances described in those three provisions of the
original charter. Furthermore, unlike appeals of discipline before
the commission that currently exist, it is not evident that
section 39, section 50, or section 34(15) of the original charter
created adversarial proceedings in which the county would
13 Section 39 has since been repealed, and section 50 no
longer prescribes a process by which the commission acts upon
complaints made by electors. Section 34(15) also does not appear
in the current version of the charter.
20
participate. Therefore, it does not seem that the county or any of
its officers would be a party to, or concerned by, those matters
such that county counsel could have possessed exclusive control
over them pursuant to section 21.
Accordingly, the commission was not a forum for
disciplinary appeals when section 21 was originally enacted.
b. The grammatical structure of section 21,
provisions of the Code of Civil Procedure, and
certain Attorney General opinions indicate that
section 21 initially conferred upon county
counsel exclusive charge and control over only
civil actions and civil proceedings
Appellants argue that the adjective “civil” preceding
“actions and proceedings” modifies “actions” and “proceedings.”
Although respondents’ counterargument on this point is not
altogether clear, they seem to assert that “civil” modifies only the
“actions” mentioned in section 21, meaning that the “proceedings”
identified in that provision include “proceedings” before the
commission. The grammatical structure of section 21 gives
appellants the better argument.
Recall section 21 provides that “[t]he County Counsel . . .
shall have exclusive charge and control of all civil actions and
proceedings in which the County or any officer thereof, is
concerned or is a party.” (Fns. omitted.) Under the “series-
qualifier canon,” “[w]hen there is a straightforward, parallel
construction that involves all nouns or verbs in a series [(e.g.,
‘actions and proceedings’)], a prepositive or postpositive modifier
[(e.g., the prepositive modifier, ‘civil’)] normally applies to the
entire series.” (See Scalia & Garner, Reading Law: The
Interpretation of Legal Texts, supra, at p. 147, boldface omitted;
21
see also Facebook, Inc. v. Duguid (2021) 141 S.Ct. 1163, 1169
(Facebook, Inc.) [referring to this canon as a “conventional rule[ ]
of grammar” that “generally reflects the most natural reading of
a sentence”].) This rule of grammar and canon of construction
informs our interpretation of section 21. (See Mt. Hawley Ins. Co.
v. Lopez (2013) 215 Cal.App.4th 1385, 1411 [“ ‘The rules of
grammar and canons of construction are . . . tools, “guides to help
courts determine likely legislative intent.” ’ ”]; Civ. Code, § 13
[“Words and phrases are construed according to the context and
the approved usage of the language[,]” italics added].)
We further note that declining to apply the series-qualifier
canon to section 21 would produce an anomalous result. For us to
read section 21 such that “civil” modifies only “actions” but not
“proceedings,” we would need to interpret the provision as
granting county counsel with exclusive authority over two
independent categories of matters: (1) “all civil actions”; and
(2) “proceedings in which the County or any officer thereof, is
concerned or is a party.” (Fns. omitted.) This is because if we
did not treat “actions” and “proceedings” as two nouns that are
subject to the same modifiers, we would have no principled,
textual basis for treating the postposition “in which the County or
any officer thereof, is concerned or is a party” as applying to “all
civil actions.” (Fns. omitted.) We observe that respondents do
not argue that county counsel has exclusive charge and control of
all civil actions, regardless of whether the county or any officer
thereof is concerned thereby or a party thereto.
The trial court held that reading the adjective “civil” to
apply both to “actions” and “proceedings” identified in section 21
would render the latter noun superfluous. Respondents second
this contention on appeal. We acknowledge that “ ‘[s]tatutes
22
must be interpreted, if possible, to give each word some operative
effect[,]’ [citation]” meaning that we should not “ ‘construe
statutory provisions so as to render them superfluous.’
[Citation.]” (See Imperial Merchant Services, Inc. v. Hunt (2009)
47 Cal.4th 381, 390.)
As we explain below, under provisions in the Code of Civil
Procedure in existence when the charter was drafted and ratified
in 1912, there was at least one category of “civil proceeding” that
did not constitute a “civil action” under our state’s laws, to wit,
special proceedings of a civil nature. Thus, construing section 21
in accordance with the series-qualifier canon would not render
the provision’s reference to “proceedings” superfluous. 14
Furthermore, opinions issued by the Attorney General further
suggest that the phrase “civil actions and proceedings” in
section 21 refers to only civil matters.
More specifically, Code of Civil Procedure section 20
provides: “Judicial remedies are such as are administered by the
Courts of justice, or by judicial officers empowered for that
purpose by the Constitution and statutes of this State.” (Code
Civ. Proc., § 20.) “Judicial remedies are divided into ‘actions’ and
‘special proceedings.’ [Citation.]” (People v. Board of Parole
Hearings (2022) 83 Cal.App.5th 432, 445 (People), quoting Code
Civ. Proc., § 21.)
At the time the charter was drafted and ratified in 1912,
Code of Civil Procedure section 22 defined “[a]n action” as “an
ordinary proceeding in a court of justice by which one party
prosecutes another for the enforcement or protection of a right,
14 Unless otherwise specified, the provisions of the Code of
Civil Procedure discussed in this part (1) are the current versions
of those provisions and (2) were in effect in 1912 as well.
23
the redress or prevention of a wrong, or the punishment of a
public offense.” (Former Code Civ. Proc., § 22, enacted 1872.)
“Actions are of two kinds: [¶] 1. Civil; and, [¶] 2. Criminal.”
(Code Civ. Proc., § 24.) In 1912, Code of Civil Procedure
section 30 provided: “A civil action is prosecuted by one party
against another for the enforcement or protection of a right, or
the redress or prevention of a wrong.” 15 (Former Code Civ.
Proc., § 30, enacted 1872.) Since 1872, a “criminal action” has
been defined in this state as “[t]he proceeding by which a party
charged with a public offense is accused and brought to trial and
punishment . . . .” (Pen. Code, § 683; see also Code Civ. Proc.,
§ 31 [“The Penal Code defines and provides for the prosecution of
a criminal action.”].)
“Every other remedy is a special proceeding.” (Code Civ.
Proc., § 23.) “ ‘[A] special proceeding is confined to the type of
case which was not, under the common law or equity practice,
either an action at law or a suit in equity.’ [Citation.]” (People,
supra, 83 Cal.App.5th at p. 446.) For instance, as was the case in
1912, “[w]rits of mandate and prohibition are denominated
special proceedings of a civil nature.” (See People, at p. 446,
citing Code Civ. Proc., pt. 3; Code Civ. Proc., pt. 3, title I
(Deering’s 1909) [listing the “special proceedings of a civil nature”
that existed at that time].) “Writs of mandate compel the
performance of a ministerial duty [citation], and writs of
prohibition arrest proceedings conducted in excess of the
presiding entity’s jurisdiction [citation].” (People, at p. 446, citing
Code Civ. Proc., §§ 1085, 1102; see also former Code Civ. Proc.,
15 Under the current versions of Code of Civil Procedure
sections 22 and 30, the word “declaration” appears just before
“enforcement.” (See Code Civ. Proc., §§ 22, 30.)
24
§ 1085, enacted 1872 [providing that a writ of mandate “may be
issued . . . to compel the performance of an act which the law
specially enjoins, as a duty resulting from an office . . . .”]; former
Code Civ. Proc., § 1102, enacted 1872 [providing that a writ of
prohibition “arrests the proceedings of any tribunal . . . when
such proceedings are without, or in excess of the jurisdiction of
such tribunal . . . .”].) Matters relating to arbitration were also
denominated as special proceedings of a civil nature in 1912 (see
Code Civ. Proc., pt. 3, former title X (Deering’s 1909)), as is the
case today (see Code Civ. Proc., pt. 3, title 9; see also
Villinger/Nicholls Development Co. v. Meleyco (1995)
31 Cal.App.4th 321, 327 [ “ ‘Hearings to confirm an arbitration
award are “special proceedings” as contrasted with “actions.” ’ ”].)
Respondents counter that “the County Charter refers to
‘civil actions’ and ‘proceedings,’ not ‘actions’ and ‘special
proceedings.’ ” They argue that “[t]here is no reason to discern
from the different language in the Charter and Code of Civil
Procedure that the Board intended to give the Charter the same
meaning as the Code.” Respondents further contend that the
Code of Civil Procedure’s “use of the modifier ‘special’ suggests
there are other proceedings not covered by the term.”
Respondents’ argument misses the mark. We acknowledge
that the aforementioned provisions from the Code of Civil
Procedure utilize the term “special proceedings” and not “civil
proceedings,” and that the two terms are not necessarily
synonymous. That observation does not undercut our conclusion
that a special proceeding under the Code of Civil Procedure is an
example of a civil proceeding that is not a civil action.
25
In addition, two Attorney General opinions are consistent
with our construction of section 21. 16
In 1946, the county counsel of San Bernardino County
asked the Attorney General “whether proceedings under the Red
Light Abatement Act of 1913 [citation], and the Unlawful Liquor
Sales Abatement Law [citation], should be instituted by the
di[st]rict attorney or the county counsel in those counties having
a county counsel.” (See 8 Ops.Cal.Atty.Gen. 110 (1946).) In
concluding that these actions were in the purview of the district
attorney, the Attorney General observed that the phrase “all . . .
civil actions or proceedings in which the county or any . . . officer
thereof is concerned or is a party” in former Political Code section
4153, subdivision 8 was substantially similar to text included in
the Los Angeles County Charter. 17 (See 8 Ops.Cal.Atty.Gen.
110–112 (1946), italics omitted.) The Attorney General then
16 We may consider Attorney General opinions in
construing section 21 of the charter. (See Lexin v. Superior Court
(2010) 47 Cal.4th 1050, 1087, fn. 17; 7 Witkin, Summary of Cal.
Law (11th ed. 2017) Const. Law, § 138, pp. 249–251 [“Among the
permissible aids to construction are the following: [¶] . . . [¶] . . .
Attorney General’s opinion[s].”].)
17 Political Code section 4153 was later repealed. (See
Stats. 1947, ch. 424, § 5, pp. 1307–1309 [repealing Pol. Code,
§ 4153; see also People v. Municipal Court (1972)
27 Cal.App.3d 193, 200 [noting that portions of Pol. Code, § 4153
were later recodified in certain Gov. Code sections].) Although
the statute repealing Political Code section 4153 was itself later
repealed (see Stats. 1979, ch. 373, § 420), the Legislature did not
thereby revive Political Code section 4153. (See Gov. Code,
§ 9607, subd. (a) [providing that, as a general rule, “no statute or
part of a statute, repealed by another statute, is revived by the
repeal of the repealing statute”].)
26
indicated that county counsel’s authority under former Political
Code section 4153, subdivision 8 was limited to cases “in which
the county, as a political entity, is interested in a financial way or
by reason of its ownership of property.” (See 8 Ops.Cal.Atty.Gen.
112 (1946).) The Attorney General thereafter remarked, “It is
this class of civil cases, that is, those arising in the conduct of the
business of the county, the handling of which has been committed
to the county counsel.” (Ibid.) Thus, although the Attorney
General was not directly interpreting section 21, his conclusion
that the phrase “ ‘civil actions or proceedings in which the county
or any . . . officer thereof is concerned or is a party’ ” refers to a
“class of civil cases” further indicates that our grammatical
construction is the most natural reading of comparable language
in section 21. (See 8 Ops.Cal.Atty.Gen. 110–112 (1946).)
The Attorney General made a similar observation in an
opinion issued 27 years later. The county counsel and the district
attorney of Sonoma County had asked the Attorney General:
“When an order issues in private civil litigation (injunction
action) adjudging a party in contempt of court, levying a fine, and
reciting that if the fine is not paid by a given date execution shall
issue to collect it, does the district attorney or county counsel
have the duty or authority to procure issuance of execution to
collect the fine?” (56 Ops.Cal.Atty.Gen. 53 (1973).) In analyzing
this issue, the Attorney General noted that Government Code
section 26529 provides in part: “ ‘The county counsel shall defend
or prosecute all civil actions and proceedings in which the county
or any of its officers is concerned or is a party . . . .’ ” (See 56
Ops.Cal.Atty.Gen. 55 (1973), quoting Gov. Code, § 26529, subd.
(a).) Just like former Political Code section 4153, subdivision 8,
this Government Code provision closely resembles section 21.
27
The Attorney General thereafter stated that “in essence the
county counsel’s primary responsibilities are as to civil matters in
which the county is interested . . . .” (See 56 Ops.Cal.Atty.Gen.
56 (1973), italics added.) The Attorney General ultimately
concluded that “the district attorney should collect the civil
contempt fine involved [t]herein” largely because of the criminal
nature of “the punishment imposed[,]” and that another provision
of the Government Code authorizes a trial judge to “request the
county counsel to execute upon a contempt fine levied in a civil
action.” (See 56 Ops.Cal.Atty.Gen. 53–57 (1973), italics added.)
In sum, we hold that under the original version of the
charter, county counsel had exclusive charge and control of civil
actions and civil proceedings, neither of which could have
included appeals of discipline before the commission that did not
exist when section 21 was enacted. We next address whether
section 21 currently grants county counsel exclusive power to
settle such appeals.
2. Respondents fail to show that because of certain
amendments made to the county charter, section 21
now confers upon county counsel exclusive charge and
control of appeals of discharges pending before the
commission
Even though county counsel could not have possessed the
sole power to compromise appeals of discipline before the
commission when the charter initially became effective, we can
conceive of two scenarios in which the legislative body
responsible for enacting the charter’s provisions could have
manifested its intention to expand the county counsel’s authority
to encompass such appeals: (1) if the board of freeholders and
ratifiers of the original charter intended for the phrase “all civil
28
actions and proceedings in which the County or any officer
thereof, is concerned or is a party” (fns. omitted) to include such
later-created commission proceedings; or (2) if in the course of
amending other portions of the charter, the board of supervisors
and the voters intended to grant that power to county counsel. 18
Respondents fail to substantiate either theory. 19
a. Respondents fail to show the rule of prospective
operation supports their construction of
section 21
Sutherland recognizes that under “the rule of prospective
operation[,]” “a statute expressed in general terms and written in
the present or future tense[ ] applies to existing things and
conditions and also prospectively to future things and conditions.”
(See 2B Sutherland, Statutory Construction (7th ed. 2022) § 49:2,
fn. omitted; see also Snukal v. Flightways Manufacturing, Inc.
(2000) 23 Cal.4th 754, 777–778 & fn. 7 [relying on passages from
Sutherland, Statutory Construction in the course of construing a
state statute].) For this rule to apply, the legislation must be
“written in terms broad enough to cover circumstances
18 The 2016 annotated charter indicates that the board of
supervisors proposed, and the voters ratified, certain charter
amendments that we address in greater detail in
Discussion, part A.2.b, post.
19 (See In re D.N. (2020) 56 Cal.App.5th 741, 767 (D.N.)
[“ ‘ “Although it is the appellant’s task to show error, there is a
corresponding obligation on the part of the respondent to aid the
appellate court in sustaining the judgment. ‘[I]t is as much the
duty of the respondent to assist the [appellate] court upon the
appeal as it is to properly present a case in the first instance, in
the court below.’ ” ’ ”].)
29
unanticipated at the time of enactment.” (See 2B Sutherland,
Statutory Construction, supra, § 49:2; see also People ex rel.
Lockyer, supra, 37 Cal.4th at p. 724 [indicating the objective of
statutory construction is to “ ‘ “arriv[e] at the true intent existing
at the time the legislation was enacted” ’ ”].)
Arguably, the drafters and ratifiers of the original charter
intended the phrase “all civil actions and proceedings in which
the County or any officer thereof, is concerned or is a party” to
cover at least some actions and proceedings that did not yet exist
in 1912. (Fns. omitted.) Nevertheless, it is not apparent that
this phrase from section 21 includes appeals before the
commission. As explained in Discussion, part A.1.b, ante, under
the “most natural reading” of the text, the provision references
civil actions and civil proceedings. (See Facebook, Inc., supra,
141 S.Ct. at p. 1169.)
Furthermore, respondents do not argue that an appeal
heard by the commission constitutes a civil action or a civil
proceeding. In fact, they refer to these appellate matters as
“administrative appeals before the Commission.” (Italics added.)
When the charter was ratified in 1912, the legal profession used
the terms “civil” and “criminal” to refer to different types of
matters over which courts have jurisdiction, the former of which
involved “private rights and remedies,” and the latter of which
“pertain[ed] to or [was] connected with the law of crimes, or the
administration of penal justice . . . .” (See Black’s Law Dict.
(2d ed. 1910) p. 203, cols. 1–2 [entry for “civil” and subentry for
“civil side”]; id. at p. 300, col. 2 [adjective entry for “criminal”].) 20
20 We take judicial notice of the Black’s Law Dictionary
entries discussed in this opinion as they are probative of the
30
The version of Black’s Law Dictionary then in effect also
indicated that the adjective “administrative” referred to an
“executive or ministerial action” that was not of a “judicial”
character. (See Black’s Law Dict. (2d ed. 1910) p. 38, col. 1.)
Thus, we cannot conclude that the board of freeholders employed
language of sufficient breadth to include appeals of discipline
before the commission that would later come into existence.
b. Respondents fail to establish that subsequent
amendments to the charter were intended to
expand county counsel’s authority under
section 21
After the original charter was ratified, section 34 was
amended such that it now provides that “[t]he Civil Service
Commission shall serve as an appellate body in accordance with
the provisions of Sections 35(4) and 35(6) . . . and as provided in
the Civil Service Rules”; section 35 was amended to add
subdivision (6) thereof, thereby requiring the issuance of civil
service rules providing for “Civil Service Commission hearings on
appeals of discharges and reductions of permanent employees”;
and section 47.5(d) was added, which provides for the “initiat[ion
of] discharge proceedings against [an] employee” under certain
circumstances. Although our record does not contain the
meaning of section 21. (See Golden Security Thrift & Loan Assn.
v. First American Title Ins. Co. (1997) 53 Cal.App.4th 250, 256
[indicating that an appellate court may take judicial notice of
“various dictionary definitions” of a term]; see, e.g., People v.
Leiva (2013) 56 Cal.4th 498, 507 [consulting Black’s Law
Dictionary in the course of construing a legal term included in a
statute].)
31
legislation amending these charter provisions, the 2016
annotated charter reveals that section 34 was amended in 1940,
1946, 1948, 1954, 1972, and 1978; section 35 was amended in
1978; and section 47.5 was added in 1982.
We recognize the general rule that if a legislature amends a
provision, “[t]he original section as amended and the unaltered
sections of the act, code, or compilation of which it is a part, and
which relate to the same subject matter, are read together.” (See
1A Sutherland, Statutory Construction (7th ed. 2022) § 22:35.)
Thus, arguably because these changes to sections 34 and 35 and
the addition of section 47.5(d) augmented the scope of commission
proceedings to include appeals of discharges, the “proceedings”
subject to county counsel’s exclusive charge and control in
section 21 now include these appeals.
Yet, the grammatical structure of section 21 has remained
unchanged since voters approved the provision in 1912. (See
Discussion, part A, ante [beginning of Discussion, part A, which
explains that the original version of section 21 remains in effect];
Discussion, part A.1.b, ante [discussing the application of the
series-qualifier canon to section 21].) Furthermore, even though
we asked for briefing on “legislative history materials” concerning
“the drafters’ or voters’ intent[ 21] in enacting the relevant
provisions of the Los Angeles County Charter that would assist
the Court’s interpretation of those provisions,” respondents failed
to provide any historic materials relating to these amendments.
21 (See 2B Sutherland, Statutory Construction, supra,
§ 51:3 [indicating that the interpretive doctrine of “in pari
materia[,]” that “related statutes . . . should be construed
together[,]” should be utilized only if it is indicative of “legislative
intent”].)
32
Instead, they contend their “research has not revealed anything
that directly illuminates the drafters’ and the voters’ intent in
vesting County Counsel with ‘exclusive charge and control of all
civil actions and proceedings in which the County or any officer
thereof, is concerned or is a party[.]’ [Citation.] ” (Quoting § 21.)
In response to our request, respondents pivot our focus to
“County law provisions” that post-date the 1912 ratification of
the original charter, which they contend “are consistent with
County Counsel’s role as the County’s attorneys—whereby it [sic]
oversees the County’s legal affairs and is exclusively authorized
to settle claims by and against the County, subject to Board
approval where the claim exceeds $20,000.” Specifically,
respondents note that rule 4.19 of the civil service rules describes
“the matters before the Commission as ‘proceedings.’ ” They also
cite Los Angeles County Code sections 2.14.010 and 2.14.020 in
support of their argument that “any settlement agreement in ‘any
action or proceeding’ involving the County or one of its officers
must involve County Counsel and, where that settlement
agreement requires the expenditure of more than $20,000, the
Board of Supervisors must also approve the settlement.”
(Quoting L.A. County Code, § 2.14.010.)
It is unclear whether respondents are arguing that these
“County law provisions” indicate that, in amending the charter to
modify the nature and scope of the commission’s responsibilities,
the board of supervisors and the electorate had intended to confer
upon county counsel exclusive authority to settle appeals before
the commission. In any event, respondents fail to demonstrate
that rule 4.19 and the L.A. County Code provisions they cite
support that position.
33
Rule 4.19 of the civil service rules, last amended in 1988,
provides: “Pursuant to Charter Section 34, the civil service
commission shall adopt and amend rules to govern its own
proceedings, and cause such rules to be published and distributed
to all county departments and districts and all certified
organizations. In case of conflict between these Rules and rules
adopted by the commission, the provisions of these Rules shall
prevail.” This rule’s reference to the commission’s “own
proceedings” simply mirrors section 34’s use of that term to refer
to matters before that body. Consequently, rule 4.19 does not
shed any light on whether post-1912 amendments to the charter
were intended to confer upon county counsel exclusive authority
to settle commission appeals.
Los Angeles County Code sections 2.14.010 and 2.14.020
do not either. Instead, they either do not apply on their face or
merely raise an interpretive question analogous to the one before
us. More specifically, whereas the key question before us is
whether “civil actions and proceedings” in section 21 includes
appeals of discipline pending before the commission, respondents’
citation to Los Angeles County Code section 2.14.20 leaves
unanswered a related interpretive question—whether the
“claim[s] or suit[s]” county counsel is empowered to settle (up to a
certain dollar amount) likewise include appeals of discipline
before the commission. (See L.A. County Code, § 2.14.020.A–B.)
Accordingly, respondents’ reliance on these ordinances is
unavailing.
Section 2.14.010, entitled “Actions against county and
notice of uncollected claims—Notification to county counsel[,]”
and enacted in 1942, provides: “It shall be the duty of the head of
each office or department to notify the county counsel in writing
34
of each and every claim for money, damages or redress of any
kind whatsoever in favor of the county, or in which the county is
interested, which is uncollected after due diligence and which
justifies suit for collection, to the end that suit may be filed
within the time allowed by law; and it shall be the duty of the
head of each office or department to transmit to the county
counsel immediately any and all pleadings or papers served upon
such officer in any action or proceeding against such officer in his
official capacity or against the county.” (L.A. County Code,
§ 2.14.010, boldface omitted from first quotation.)
On its face, Los Angeles County Code section 2.14.010
appears to require notice to county counsel of claims belonging to
the county and not claims of its employees. (See L.A. County
Code, § 2.14.10 [requiring notice to county counsel of “claim[s] for
money, damages or redress of any kind whatsoever in favor of the
county, or in which the county is interested, . . . which justif[y]
suit[s] for collection, to the end that suit may be filed within the
time allowed by law[,]” italics added].) Further, we acknowledge
that the second clause in section 2.14.010 obligates “the head of
each office or department to transmit to the county counsel
immediately any and all pleadings or papers served upon such
officer in any action or proceeding against such officer in his
official capacity or against the county.” (See L.A. County Code,
§ 2.14.010.) Nevertheless, assuming arguendo that an appeal
before the commission constitutes an “action or proceeding” for
the purposes of this clause, this portion of the ordinance appears
to be a means of facilitating county counsel’s duty to “represent
and advise the Board of Supervisors and all County, township
and school district officers, in all matters and questions of law
pertaining to their duties,” rather than evidence that an appeal
35
before the commission is a “proceeding” subject to county
counsel’s “exclusive charge and control” under section 21. (Fns.
omitted.)
Respondents also rely on Los Angeles County Code
section 2.14.020, entitled “Suits or claims—Settlement
procedure” and enacted in 1942 and amended in 1974 and in
1982. (See L.A. County Code, § 2.14.020.) Subdivisions A and B
of that code section provide: “A. Except as otherwise provided in
this section, where, in the opinion of the county counsel, the
board of supervisors may legally compromise or settle any claim
or suit by or against the county, or any officer thereof, the county
counsel shall report to the board of supervisors the results of his
investigation concerning such suit or claim, together with such
recommendation for its disposition as he may have, for the
information of the board of supervisors in its action. [¶]
B. Where, after proper claim has been filed and upon
investigation by the county counsel, he finds that there exists a
probable liability on the part of the county of Los Angeles as to a
claim or suit, and where the amount necessary to be expended in
order to pay, settle or compromise such claim or suit does not
exceed the sum of $20,000.00, the county counsel is authorized to
pay, settle or compromise such claim or suit pending against the
county of Los Angeles, or any officer or employee thereof for
which the county may ultimately be liable, in an amount not
exceeding $20,000.00, as to any person, firm or corporation,
without the necessity of first receiving the approval of the board
of supervisors.” 22 (L.A. County Code, § 2.14.020, subds. A–B.)
22 Los Angeles County Code section 2.14.020,
subdivision C concerns county counsel’s authority to “settle or
36
Respondents do not argue, and therefore fail to
demonstrate, that a discharged county employee’s civil service
appeal constitutes a “claim or suit” for the purpose of Los Angeles
County Code section 2.14.020. Indeed, section 35(6) of the
charter refers to those matters as “appeals of discharges[,]” and
respondents characterize them as “challenges by County
employees to disciplinary decisions.” Without any further
analysis by respondents, we cannot leap to the conclusion that
the ordinance should inform our interpretation of section 21’s
reference to “civil actions and proceedings . . . .” (Fns. omitted.)
(See also Inyo Citizens for Better Planning v. Inyo County Bd. of
Supervisors (2009) 180 Cal.App.4th 1, 14 (Inyo Citizens for Better
Planning) [“We do not serve as ‘backup appellate counsel,’ or
make the parties’ arguments for them.”].)
We further note that Los Angeles County Code
section 2.14.020 is distinguishable from the San Bernardino
County Code provision upon which respondents also rely in their
supplemental briefing. They note that San Bernardino County
Code section 12.1907, subdivision (a)(1) “expressly delegates to its
county counsel authority to compromise or settle any threatened
or pending action against the County or its officers up to $50,000,
including any matter ‘subject to litigation, whether in a court of
law or administrative proceeding.’ ” (Quoting San Bernardino
compromise any claim or suit of the county of Los Angeles
against third parties . . . .” (See L.A. County Code, § 2.14.020,
subd. C, italics added.) Respondents do not argue that this
provision has any bearing on this case.
37
County Code, § 12.1907, subd. (a)(1).) 23 Notably, the term
“administrative proceeding” in San Bernardino County Code
section 12.1907, subdivision (a)(1) is absent from Los Angeles
County Code section 2.14.020’s description of “claim[s] or suit[s]”
subject to county counsel’s authority. (See L.A. County Code,
§ 2.14.020, subds. A–B.) Thus, respondents’ citation to San
Bernardino County Code section 12.1907, subdivision (a)(1)
provides no assistance to the interpretive task before us.
In sum, we hold that the original version of the charter
conferred upon county counsel the exclusive authority to settle all
civil actions and civil proceedings in which the county or any
officer thereof was concerned or was a party. We further
conclude respondents have failed to show that (a) the drafters
and ratifiers of the original charter intended for county counsel’s
exclusive authority to extend to administrative proceedings that
did not yet exist, or (b) the drafters and ratifiers of subsequent
amendments to the charter intended to expand county counsel’s
exclusive authority to cover disciplinary appeals pending before
the commission. Therefore, section 21 does not grant county
counsel exclusive authority to settle such appeals.
23 Respondents seek judicial notice of the San Bernardino
County Charter and the San Bernardino County Code. We grant
respondents’ request as to San Bernardino County Code
section 12.1907. (Evid. Code, §§ 452, subd. (b), 459.) We deny
the remainder of their request because respondents do not
explain the relevance of the San Bernardino County Charter or
any portion of that county’s code other than section 12.1907. (See
State Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020)
50 Cal.App.5th 422, 442 (State Comp. Ins. Fund) [denying a
request for judicial notice of “materials . . . not relevant to [the
appellate court’s] determination of the issues on appeal”].)
38
B. Appellants’ Contract and Mandamus Claims Fail
Because They Do Not Demonstrate that the Sheriff
and His Subordinates Were Authorized to Execute
the Settlements
In their petition/complaint, the deputy appellants allege
contract claims and claims for traditional writ of mandate under
Code of Civil Procedure section 1085, whereby they seek damages
for breaches of their settlement agreements and enforcement of
those agreements. The trial court sustained the demurrer
without leave to amend as to the contract claims—the second,
fifth, and eighth causes of action—on the ground that the
settlements are “void because only the Board/County Counsel
could enter them.” Concerning county counsel’s powers, the trial
court found that section 21 confers upon county counsel exclusive
authority to execute the settlements. Conversely, the court
sustained the demurrer without leave to amend as to the
mandamus claims—the first, fourth, and seventh causes of
action—on a ground independent of “the validity of the
settlement agreements.” 24
As we have already held, section 21 does not afford county
counsel exclusive authority to settle disciplinary appeals before
the commission. It does not necessarily follow, however, that
department personnel were authorized to execute the instant
settlements.
Government Code section 23004, subdivision (c) grants the
county the power to “[m]ake contracts . . . .” (See Gov. Code,
§ 23004, subd. (c).) Government Code section 23005 in turn
24 We discuss the trial court’s treatment of the mandamus
claims in Discussion, part F, post.
39
provides: “A county may exercise its powers only through the
board of supervisors or through agents and officers acting under
authority of the board or authority conferred by law.” (Id.,
§ 23005.)
Thus, the validity of the deputy appellants’ settlement
agreements hinges on whether the chiefs executing them were
“acting under authority of the board or authority conferred by
law” for the purposes of Government Code section 23005. (See
Gov. Code, § 23005; see also Katsura v. City of San Buenaventura
(2007) 155 Cal.App.4th 104, 109 (Katsura) [“ ‘ “No government,
whether state or local, is bound to any extent by an officer’s acts
in excess of his . . . authority.” ’ ”]; Factual & Procedural
Background, part 1, ante [noting that the appellants allege that
each settlement was executed by a chief at the department in
2019].)
We asked the parties for supplemental briefing on whether
“the Sheriff or his chief [is] authorized to execute settlement
agreements on the County’s behalf.” 25 In response, appellants
provided documents they identify as “[e]xcerpts for the Manual of
Policy and Procedures of the Los Angeles County Sheriff’s
Department, dated October 26, 2022.” They assert the manual
“plainly provides authority to the Sheriff’s subordinates to settle
matters that are pending before the Commission.” For this
25 Respondents do not claim to have demurred on precisely
this ground (i.e., the absence of a grant of authority to the sheriff
and his chiefs to settle appeals before the commission).
Regardless, we reach this question because “it presents a pure
question of law and the parties have been given an opportunity to
address it.” (See Ivanoff v. Bank of America, N.A. (2017)
9 Cal.App.5th 719, 732, fn. 2.)
40
proposition, appellants direct us to section 3-04/020.80 of the
manual, which provides in pertinent part: “If discipline has been
imposed and the discipline is being appealed to the Civil Service
Commission and there are discussions about settling the case, the
division chief or division director shall consult with a
constitutional policing advisor[ 26] and then obtain concurrence
from the Undersheriff prior to entering into a settlement
agreement.” Appellants’ reliance on the manual is unavailing.
First, appellants do not explain why a manual dated
October 26, 2022 would apply to settlements reached in 2019.
Appellants thus fail to demonstrate that these manual excerpts
show the chiefs had the authority to enter into those settlements.
Second, the language at issue is ambiguous. The fact that
section 3-04/020.80 describes a consultation procedure that must
be followed before entering into a settlement agreement does not
necessarily mean the division chief or director alone has the
authority to bind the county; the specified consultation procedure
is also susceptible to a reading that following consultation,
further approval of the settlement agreement (by the board or
someone else) is required.
More fundamentally, even if we agree with appellants’
reading (an issue we do not decide), appellants do not establish
that (1) the manual is a proper delegation of authority from the
board of supervisors to department personnel to settle appeals of
discipline, 27 or (2) the manual otherwise lawfully authorizes
26 Neither side identifies this official or describes his or her
responsibilities.
27 (See Golightly v. Molina (2014) 229 Cal.App.4th 1501,
1505, 1515 [holding that Gov. Code, § 23005 permits a county
41
department personnel to bind the county to those settlements.
With respect to the delegation issue, sections 1-01/010.01,
1-01/000.00, 1-01/030.00, and 1-01/040.00 of the manual indicate
that this document was prepared by department personnel, and
appellants do not direct us to any evidence that the board of
supervisors approved it. Next, appellants do not argue—let alone
offer any supporting authority demonstrating—that this internal
policy manual constitutes the sort of “law” that for the purposes
of Government Code section 23005, could “confer” upon the
sheriff and his subordinates the power to act on behalf of the
county. (See Gov. Code, § 23005.) These failures cogently to
support appellants’ contentions constitute a waiver of their
argument that the department manual satisfies the requirements
of Government Code section 23005. 28 (See Cahill v. San Diego
Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘We are not
bound to develop appellants’ arguments for them. [Citation.]
The absence of cogent legal argument or citation to authority
allows this court to treat the contention as waived.’ ”].)
board of supervisors to delegate certain powers to county
officials].)
28 We note that appellants also rely upon
section 3-01/122.15 of the manual, which requires department
personnel to obtain approval from the sheriff or his designee for
settlements of civil service appeals of discipline exceeding 15
days’ suspension, and to obtain the approval of the County Equity
Oversight Panel (CEOP) “[i]n all other cases . . . .” In light of our
conclusion that appellants have not shown the department
manual constitutes a delegation of authority from the board of
supervisors or “authority conferred by law” for the purposes
of Government Code section 23005, we do not discuss
section 3-01/122.15 further.
42
Because appellants have failed to show that the chiefs were
authorized to enter into the settlements with the deputy
appellants, their contract causes of action in the pleading before
us against the county fail. 29 (See Katsura, supra,
155 Cal.App.4th at p. 109; San Diego City Firefighters, Local 145
v. Board of Administration etc. (2012) 206 Cal.App.4th 594, 609
(San Diego City Firefighters, Local 145) [“ ‘[A] contract entered
into by a governmental entity without the requisite constitutional
or statutory authority is void and unenforceable.’ ”].)
The deputy appellants’ mandamus claims are likewise
predicated on the settlement agreements. Because we hold that
appellants have failed to demonstrate that the chiefs were
authorized to enter into those settlement agreements, and those
agreements are thus unenforceable, the deputy appellants fail to
state viable claims for mandamus relief. (See California Assn. for
Health Services at Home v. State Dept. of Health Services (2007)
148 Cal.App.4th 696, 704 (California Assn. for Health Services at
Home) [holding that to obtain “the issuance of a traditional writ
of mandate[,]” the petitioner must show, inter alia, “a clear,
present and beneficial right . . . to the performance of” a “duty on
the part of the respondent”].)
The trial court thus did not err in sustaining respondents’
demurrers to the first, second, fourth, fifth, seventh, and eighth
29 Respondents assert that the instant action “is in all
respects an official-capacity suit and, therefore, is properly
treated as a suit against the County.” By failing to contest that
characterization in their reply brief, appellants impliedly admit it
is accurate. (See Rudick, supra, 41 Cal.App.5th at pp. 89–90.)
43
causes of action. 30 As set forth in our Discussion, parts E–G,
post, we also conclude appellants should be given leave to amend
as to these causes of action.
C. Appellants Fail To Demonstrate That, Despite the
Invalidity of the Settlement Agreements, They Have
Alleged Viable Promissory Estoppel Causes of Action
On the promissory estoppel causes of action, the deputy
appellants prayed for reinstatement, “all emoluments of
employment, including . . . medical benefits and contributions
to . . . retirement,” and damages in excess of $25,000. Appellants
appear to argue that even if the department personnel who
executed the settlements lacked authority to do so, “the
application of estoppel would still be appropriate.” We disagree.
“A promise that the promisor reasonably should expect to
induce action or forbearance and that does induce action or
forbearance is binding under the equitable doctrine of promissory
30 Respondents seek judicial notice of “Los Angeles
Sheriff’s Department Organizational Charts, dated April 3, 2017
and June 5, 2018” to support their arguments that “County
Counsel sits at the helm of the legal advisors to the Department’s
internal processes—including the Advocacy Unit, described in
section 2-04/010.15[,]” and that “County Counsel represents the
County in the Department’s disciplinary matters and Civil
Service Commission proceedings.” We deny respondents’ request
because the organizational charts have no apparent bearing on
whether the department manual grants the sheriff and his
subordinates the authority to settle disciplinary appeals on
behalf of the county. (See State Comp. Ins. Fund, supra,
50 Cal.App.5th at p. 442 [denying a request for judicial notice of
“materials . . . not relevant to [the appellate court’s]
determination of the issues on appeal”].)
44
estoppel if enforcement of the promise is necessary to avoid an
injustice. [Citation.] . . . Promissory estoppel may not be invoked
against a governmental entity if ‘ “it would operate to defeat the
effective operation of a policy adopted to protect the public.”
[Citation.]’ [Citation.]” (Las Lomas Land Co., LLC v. City of
Los Angeles (2009) 177 Cal.App.4th 837, 861, fn. 16.)
Appellants claim their invocation of promissory estoppel
would not defeat public policy because: “[T]here is no evidence of
any nefariousness; no attempt to subvert existing procedures or
policies. Instead, in accordance with 40 years of practice, three
deputies settled their administrative disciplinary appeals with
their Department, agreeing to substantial penalties in exchange
for removing the potential of termination. Public policy should
support requiring public agencies to abide by their promises and
agreements and not permit them to later shirk their legal
obligations based on new legal theories and practices developed
in response to political pressures.” 31
Appellants fail to establish that allowing them to pursue
claims of promissory estoppel against the county would not
frustrate public policy. To reiterate, “[a] county may exercise its
powers only through the board of supervisors or through agents
and officers acting under authority of the board or authority
conferred by law.” (Gov. Code, § 23005.) Appellants have not
identified any provision of the charter or other legal authority
that empowered department personnel to settle the deputy
appellants’ commission appeals at issue here. (See Discussion,
31 By referring to “political pressures,” appellants appear
to be alluding to their claim that the county had successfully
challenged the then-sheriff’s authority to rehire a former deputy
sheriff, who had been terminated.
45
part B, ante.) Promissory estoppel thus is not available to defeat
the public’s interest in ensuring that only the board of
supervisors, its agents and officers, and other officials acting
under authority conferred by law have the power to incur liability
on behalf of the county. 32 (See Dones v. Life Ins. Co. of North
America (2020) 55 Cal.App.5th 665, 694 [recognizing that “the
public policy served by limiting [a c]ounty’s contractual liability
to contracts entered in accordance with legislatively prescribed
procedures” can counsel against allowing a claim of estoppel to
proceed against that entity].)
As noted in Discussion, parts E and G, post, appellants
should be granted leave to amend as to their promissory estoppel
causes of action.
D. Appellants Do Not Establish the Trial Court
Committed Reversible Error In Sustaining the
Demurrer to Their Declaratory Relief Cause of
Action
In their petition/complaint, appellants sought two
declarations in connection with their tenth cause of action:
(1) “that the County must comply with the terms of settlement
agreements it enters into, by and through the Department,
during the pendency of administrative discipline cases such as
the John Doe I Settlement Agreement, John Doe II Settlement
Agreement and Jane Doe Settlement Agreement”; and (2) “that
the recently changed practice of requiring approval of settlements
of disciplinary cases from both the Los Angeles County Counsel
32 For example, according to appellants’ briefing, the
settlement at issue for Deputy Jane Doe restored to “her the
salary and benefits of the position of deputy sheriff . . . .”
46
and the Director of Personnel for the County violates the due
process rights of ALADS’s represented employees by removing
the ability of the Sheriff’s Department to settle disciplinary cases
at pre-deprivation hearings with members of the Sheriff’s
Department held pursuant to Skelly v. State Personnel Board
(1975) 15 Cal.3d 194.”
On appeal, appellants argue they had alleged facts that, if
ultimately proven, would warrant declaratory relief in their
favor. Appellants further contend the trial court erred in
sustaining the demurrer to this cause of action because they were
“entitled to a judicial declaration even if the declaration [were]
adverse.” 33
We reject appellants’ first requested declaration because
they have not shown department personnel have the authority to
settle appeals of discipline before the commission. (See
Discussion, part B, ante.) Accordingly, appellants are not
33 Although appellants styled their tenth cause of action as
a claim for “declaratory relief” in their petition/complaint, they
prayed for not only declaratory relief on this cause of action, but
also for “[a]n injunction preventing the County from refusing to
comply with the terms of settlement agreements it enters into, by
and through the Department, during the pendency of
administrative discipline cases such as the John Doe I Settlement
Agreement, John Doe II Settlement Agreement and Jane Doe
Settlement Agreement.” By failing to address this claim for
injunctive relief in their briefing, appellants have abandoned any
claim the trial court erred in sustaining the demurrer to this
aspect of their tenth cause of action. (Reyes v. Kosha (1998)
65 Cal.App.4th 451, 466, fn. 6 [“Issues not raised in an
appellant’s brief are deemed waived or abandoned.”].)
47
entitled to a declaration that the county must comply with
unauthorized settlements of pending commission appeals.
Regarding appellants’ second request for a declaration
concerning their asserted due process rights, appellants reason
that “[i]f a pre-deprivation hearing is necessary to comply with
due process [citation], the rights following the issuance of the
final notice of termination should also include the ability to
negotiate an amicable and mutually beneficial agreement.” 34
(Citing Skelly, supra, 15 Cal.3d 194.)
Appellants’ theory appears to be a procedural due process
claim, given that “[p]rocedural due process . . . focuses upon the
essential and fundamental elements of fairness of a procedure
which would deprive the individual of important rights.” 35 (In re
34 Appellants alleged in their pleading that the county
violated the due process rights of ALADS’s represented
employees “by removing the ability of the Sheriff’s Department to
settle disciplinary cases at pre-deprivation hearings with
members of the Sheriff’s Department held pursuant to
Skelly . . . .” (First italics added.) Yet, in the portion of
appellants’ opening brief that discusses their due process theory,
they argue that an employee and the department should be
permitted to enter into a settlement “following the issuance of the
final notice of termination” (italics added), suggesting they are
now claiming the county violates due process by refusing to settle
after the Skelly stage of the disciplinary proceedings. Both
theories fail for the reasons stated in the text of this part.
35 Insofar as appellants maintain that the trial court
should have treated this theory as a substantive due process
claim, they fail to raise that point cogently. (See Hernandez,
supra, 37 Cal.App.5th at p. 277; see also Rental Housing Owners
Assn. of Southern Alameda County, Inc. v. City of Hayward
48
Crystal J. (1993) 12 Cal.App.4th 407, 412.) We first set forth the
applicable legal principles, and then explain that appellants
make no effort to apply those principles to their due process
theory.
“ ‘The first inquiry in [a] due process challenge is whether
the plaintiff has been deprived of a protected interest in
“property” or “liberty.” [Citations.] . . . .’ [Citations.]” (See
Today’s Fresh Start, Inc. v. Los Angeles County Office of
Education (2013) 57 Cal.4th 197, 214 (Today’s Fresh Start, Inc.).)
In lieu of a “ ‘protected property interest,’ ” the plaintiff may
“ ‘ “identify a statutorily conferred benefit or interest of which he
or she has been deprived to trigger procedural due process under
the California Constitution . . . .” ’ ” (See Barri v. Workers’ Comp.
Appeals Bd. (2018) 28 Cal.App.5th 428, 462–463.)
“ ‘[O]nce it is determined that the Due Process Clause
applies, “the question remains what process is due.” ’
[Citations.]” (Today’s Fresh Start, Inc., supra, 57 Cal.4th at
p. 214.) To answer that question, courts consider three factors:
“ ‘First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value, if
any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.’
[Citations.]” (See id. at p. 213, quoting Mathews v. Eldridge
(2011) 200 Cal.App.4th 81, 93 [“Substantive due process protects
against ‘arbitrary legislative action, even though the person
whom it is sought to deprive of his right to life, liberty or property
is afforded the fairest of procedural safeguards.’ ”].)
49
(1976) 424 U.S. 319, 335.) “[W]e may also consider a fourth factor
[when assessing alleged violations of the state due process
clause], ‘ “the dignitary interest in informing individuals of the
nature, grounds, and consequences of the action and in enabling
them to present their side of the story before a responsible
government official.” ’ [Citations.]” (See Today’s Fresh Start,
Inc., at p. 213.)
Appellants do not claim to possess a protected liberty or
property interest, or a statutorily conferred benefit or interest, in
having an opportunity to settle disciplinary matters with the
department. Insofar as appellants claim to have a protected right
to employment with the department, they still fail to demonstrate
that procedural due process entitles them to the opportunity to
settle disciplinary charges. Instead of analyzing their proposed
procedural safeguard under the applicable factors set forth above,
appellants simply claim that without it, “deputies and other
individuals [would] be forced to proceed through an
administrative appeal when neither the Department nor the
deputy wishes to place the final determination in the hands of a
third party.” Absent any relevant analysis by appellants, we
do not consider appellants’ due process argument further. (See
United Grand Corp. v. Malibu Hillbillies, LLC (2019)
36 Cal.App.5th 142, 153 [“We may and do ‘disregard conclusory
arguments that are not supported by pertinent legal authority or
fail to disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt.’ ”].)
Finally, appellants argue that even if they cannot secure a
judicial declaration in their favor on the tenth cause of action, the
trial court should have overruled the demurrer because they
alleged facts sufficient to establish the existence of an actual
50
controversy concerning the validity of the department’s
settlements and county counsel’s “blanket refusal . . . to approve”
them. Assuming for the sake of argument the trial court erred in
sustaining the demurrer to this cause of action, any such error
would not warrant reversing the order sustaining the demurrer.
That type of “technical” error is “harmless if[,]” as is the case
here, “the substantive claim” underlying the request for
declaratory relief “is legally untenable.” (See Teresi v. State of
California (1986) 180 Cal.App.3d 239, 245, fn. 4.)
For these reasons, appellants fail to demonstrate the trial
court erred prejudicially in sustaining the demurrer to their
tenth cause of action for declaratory relief. As set forth in
Discussion, part G, post, however, appellants should be granted
leave to amend vis-à-vis their declaratory relief cause of action,
except insofar as it is predicated on appellants’ procedural due
process theory.
E. Appellants Should Be Afforded Leave to Amend To
Demonstrate the Sheriff and His Subordinates Were
Authorized To Execute the Settlements
The trial court denied appellants leave to amend their first
pleading against respondents. “ ‘[F]or an original complaint,
regardless of whether the plaintiff has requested leave to amend,
it has long been the rule that a trial court’s denial of leave to
amend constitutes an abuse of discretion unless the complaint
“shows on its face that it is incapable of amendment.”
[Citations.]’ ” (Tarrar Enterprises, Inc. v. Associated Indemnity
Corp. (2022) 83 Cal.App.5th 685, 688–689 (Tarrar Enterprises,
Inc.).) “ ‘ “Denial of leave to amend [an initial complaint] is
appropriate only when it conclusively appears that there is no
51
possibility of alleging facts under which recovery can be obtained.
[Citation.]” [Citation.]’ ” (See id. at p. 689.)
As we explained in Discussion, part A, ante, the trial court
erred in finding that section 21 confers upon county counsel the
exclusive authority to settle disciplinary appeals before the
commission. We also held that appellants’ failure to demonstrate
that the sheriff and his chiefs were authorized to execute those
settlements on behalf of the county is fatal to their contract,
mandamus, and estoppel causes of action and part of their claim
for declaratory relief. (See Discussion, parts B–D, ante.)
For the reasons set forth below, we conclude, however,
there is a reasonable possibility appellants could remedy this
defect and that appellants should be afforded the opportunity to
do so. Specifically, we explain that the department allegedly has
maintained a longstanding view that the sheriff and his
subordinates are authorized to settle appeals before the
commission. We explain below that appellants may be able to
ascertain the basis (if any) for that position during discovery if
the judgment were reversed. Additionally, respondents have not
shown that granting appellants leave to amend would be an
exercise in futility. In light of these factors, we conclude
appellants’ initial pleading does not “ ‘ “show[ ] on its face that it
is incapable of amendment[,]” ’ ” meaning the trial court abused
its discretion in denying appellants leave to replead their
contract and estoppel claims. 36 (See Tarrar Enterprises, Inc.,
supra, 83 Cal.App.5th at p. 689.)
36 We address whether leave to amend should be granted
as to the mandamus and declaratory relief causes of action in
Discussion, parts F–G, post.
52
1. There is a reasonable possibility that appellants could
allege facts, or proffer judicially noticeable
documents, showing the sheriff and his subordinates
are authorized to settle appeals before the commission
First, appellants alleged in their petition/complaint that
“[s]ince at least 1980, no signatory, approval, or agreement was
required for the lawful execution of an enforceable settlement
agreement related to a disciplinary dispute other than the
affected ALADS member and the Captain or Chief responsible for
the discipline decision.” Appellants further asserted that “[a]t all
times since at least 1980, . . . the County, Board of Supervisors,
and Sheriff’s Department, have . . . acted” as if “the authority of a
Department Captain and/or Chief to resolve any pending dispute
concerning a disciplinary action continues unabated through at
least the duration of any pending Civil Service appeal
proceedings.” These allegations are presumed to be true at the
demurrer stage. (See Santa Ana Police Officers Assn., supra,
13 Cal.App.5th at pp. 323–324 [“We assume the truth of the
properly pleaded factual allegations . . . .”].)
Second, the excerpts from the manual described in
Discussion, part B, ante, are arguably consistent with appellants’
theory that the department has taken the position that its
personnel are authorized to settle disciplinary appeals before the
commission. These excerpts support the reasonable inference
that there may exist other documents potentially establishing
that the sheriff and his subordinates have this authority.
Third, the record indicates that if the trial court had
granted appellants leave to amend after it sustained respondents’
demurrers to the original petition/complaint, appellants could
have discovered the basis (if any) of the department’s alleged
53
belief that its officials may lawfully execute these settlements,
and appellants thereafter could have amended their
petition/complaint accordingly. During the proceedings below,
appellants sought discovery from the county of “[a]ll
communications between the Sheriff’s Department and the
County Counsel concerning the settlement agreement entered
into between [each deputy appellant] and the Sheriff’s
Department.” Appellants also requested “[a]ll documents
concerning the settlement agreement entered into between [each
deputy appellant] and the Sheriff’s Department.” The county
objected to these discovery requests on several grounds, including
attorney-client privilege, work product doctrine, deliberative
process privilege, official information privilege, overbreadth, and
undue burden.
Appellants moved to compel the county to provide further
responses to these requests for production; the County opposed
the motion. The trial court did not reach the substance of
appellants’ motion to compel because it took the matter off
calendar upon sustaining respondents’ demurrer to the second,
third, fifth, sixth, eighth, ninth, and tenth causes of action
without leave to amend. If the court had instead sustained the
demurrer to those causes of action with leave to amend, the court
may have granted all or part of the motion to compel, thereby
affording appellants an opportunity to discover the potential
underpinnings of the department’s alleged position that its
personnel can settle civil service commission appeals.
54
2. Respondents fail to establish that appellants cannot
show the sheriff and department personnel may settle
appeals pending before the commission
We acknowledge that “[w]e may affirm the judgment on
any ground apparent from the record, regardless of the grounds
upon which the trial court sustained the demurrer.” (Jones v.
Whisenand (2017) 8 Cal.App.5th 543, 550.) This general
principle of appellate review, however, does not obligate us to
scour the record and construct legal grounds in support of the
judgment. (See D.N., supra, 56 Cal.App.5th at p. 767; Inyo
Citizens for Better Planning, supra, 180 Cal.App.4th at p. 14.)
In their briefing, respondents advance several arguments
in favor of affirmance that seem to be independent of their
proffered construction of section 21. Specifically, respondents
argue: (1) “the trial court could have also sustained the demurrer
based on the [administrative] exhaustion doctrine” because the
deputy appellants’ proceedings before the commission were still
pending when they filed suit; (2) the director of personnel, but not
the sheriff or his subordinates, is a “delegated representative” of
the board of supervisors that is empowered to enter into a “pre-
decision resolution” of an appeal before the commission; and
(3) the settlements are void under Government Code
section 25203 because the board of supervisors did not approve
them. For the reasons set forth below, we conclude respondents
have not “ ‘ “conclusively” ’ ” shown “ ‘ “that there is no possibility
of [appellants] alleging facts under which recovery can be
obtained. [Citation.]” [Citation.]’ ” (See Tarrar Enterprises, Inc.,
supra, 83 Cal.App.5th at p. 689.)
First, during the proceedings below, the trial court
acknowledged “[t]he general rule is that ‘a party must exhaust
55
administrative remedies before resorting to the courts.’
[Citation.]” (Quoting Coachella Valley Mosquito & Vector Control
Dist. v. California Public Employment Relations Bd. (2005)
35 Cal.4th 1072, 1080.) The trial court rejected respondents’
contention that appellants’ failure to exhaust administrative
remedies rendered their claims legally defective: “This
requirement does not apply here because [the deputy appellants]
are not seeking disciplinary review. When [the deputy
appellants] were seeking such relief before the Commission, they
allegedly entered [into] a settlement agreement, which was
breached. While [the deputy appellants] seek the same relief
they could get from the Commission—reinstatement—the basis
for this relief is the breached agreement, independent of the
Commission’s disciplinary review.”
Although respondents cite the exhaustion defense in their
briefing, they make no effort to rebut the trial court’s rationale
for rejecting that defense. They have thus failed to overcome the
presumption of correctness accorded to the trial court’s finding
that the deputy appellants did not have to exhaust
administrative remedies before filing the instant suit. (See Tokio
Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999)
75 Cal.App.4th 110, 118 [“[T]he general rule [is] that trial court
rulings are presumed correct.”].)
Next, respondents maintain that the director of personnel,
but not the sheriff or his subordinates, is a “duly delegated
officer” authorized to execute a “settlement agreement before the
Commission enters a final order” on an employee’s appeal. They
rely on section 32 of the charter, which provides in pertinent part:
“The Board of Supervisors shall appoint the Director of Personnel
who shall under the general direction of the Board of Supervisors,
56
administer the Civil Service system in accordance with the
provisions of this Charter and the Civil Service Rules.” The
respondents also cite civil service rules 3.03.B and 3.03.C for the
proposition that even though the director of personnel “may
delegate . . . authority regarding personnel decisions,” the official
“retains the power to review and revoke that authority.” They
further claim that civil service rules 17.01 and 17.02 establish
that the “Director of Personnel controls employee
reinstatement.” 37
Inasmuch as respondents claim these authorities establish
appellants cannot amend to allege facts, or offer judicially
noticeable materials, showing that department personnel are
authorized to execute settlements of disciplinary appeals before
the commission, we are unpersuaded.
The clause from section 32 of the charter upon which
respondents rely indicates only that the director of personnel
administers the civil service system, and does not address
whether a settlement of an appeal before the commission
requires the director’s approval.
37 In a string citation that includes several other
authorities, respondents also cite rules 3.01 to 3.03 of the civil
service rules after the following textual sentence: “[The instant
civil service appeals] could, thus, not be resolved without
authorized approval of the County—through the Board and/or the
Director of Personnel—or its designated lawyers.” They provide
no explanation or analysis as to how, if at all, rules 3.01, 3.02,
and 3.03 substantiate that assertion. We thus do not further
address that issue. (See People v. Evans (2011) 200 Cal.App.4th
735, 756, fn. 12 [rejecting a contention advanced by a respondent
in support of the judgment because that party “fail[ed] to
adequately support th[at] argument”].)
57
Rule 3.03 concerns the director of personnel’s power to
delegate, audit, and revoke “his or her authority in operational
activities, such as, but not limited to recruitment and selection,
and employee development . . . .” Respondents do not assert that
settlement of an appeal before the commission constitutes an
operational activity, let alone offer any authority for that
proposition.
We observe that rule 17.01.A and rule 17.01.B of the civil
service rules condition reinstatement on “approval by the director
of personnel,” and that rule 17.02 addresses the restoration of
“rights acquired by an employee” “[u]pon reinstatement . . . .”
Respondents, however, provide no analysis or authority showing
whether, and if so, to what extent the director of personnel has
discretion to determine whether reinstatement is proper, or
whether the director of personnel’s approval is merely a
perfunctory, administrative requirement. Regardless, because
appellants have not had an opportunity to discover the legal
foundation (if any) for the department’s apparent position that its
personnel were authorized to execute the instant settlements (see
Discussion, part E.1, ante), we are unable to conclude at this
juncture that rules 17.01 and 17.02 constitute the exclusive
means by which a former department employee may be
reinstated. Resolution of that question must await another day.
Lastly, respondents argue in their initial appellate brief
that Government Code section 25203 supports the judgment of
dismissal. Section 25203 provides in pertinent part: “The board
shall direct and control the conduct of litigation in which the
county, or any public entity of which the board is the governing
body, is a party; by a two-thirds vote of all the members, the
board may employ counsel to assist the district attorney, county
58
counsel, or other counsel for the county or entity in the conduct of
such actions . . . .” (Gov. Code, § 25203.)
In its order sustaining the demurrer to the breach of
contract claims, the trial court apparently relied upon
Government Code section 25203 for the proposition that the
settlement agreements were not valid in the absence of board
approval. Although respondents argue this interpretation of the
statute is correct because “the term ‘litigation’ is used to refer to
adversarial proceedings that take place before administrative
bodies[,]” they do not support this assertion with any case law
construing section 25203. 38
In any event, regardless of whether an appeal before the
commission constitutes “litigation” under that statute,
respondents concede in their briefing that Government Code
section 25203 does not preclude the board from delegating control
of such litigation to one or more “ ‘agents[.]’ ” Because we do not
know the legal basis, if any, for the department’s alleged
longstanding practice of settling disciplinary appeals before the
commission, we cannot exclude the possibility that the board of
38 Specifically, respondents cite The Utility Reform
Network v. Public Utilities Com. (2008) 166 Cal.App.4th 522, and
Lusardi Construction Co. v. Aubry (1992) 1 Cal.4th 976, neither
of which interpreted Government Code section 25203. (See The
Utility Reform Network, at pp. 524, 537 [characterizing matters
before the Public Utilities Commission as “administrative
litigation” in the course of reviewing that agency’s decision
awarding attorney fees to an entity]; Lusardi Construction Co., at
pp. 981–985 [noting that the Department of Industrial Relations
had warned a private contractor that it “could be subject to . . .
civil and administrative litigation” for certain Labor Code
violations].)
59
supervisors had delegated this authority to the department. In
short, even if we agreed with respondents’ interpretation of
section 25203, we would be unable to conclude that “ ‘the
complaint “shows on its face that it is incapable of amendment.”
[Citations.]’ ” (See Tarrar Enterprises, Inc., supra,
83 Cal.App.5th at pp. 688–689.)
F. Appellants Should Be Afforded Leave To Replead
Their Mandamus Causes of Action
As we noted earlier, the trial court sustained respondents’
demurrer to the first, fourth, and seventh causes of action for
writ of mandate, without leave to amend, for a reason
independent of the validity of the settlement agreements. The
court found that appellants had sought “a writ of mandate
specifically enforcing the contracts[,]” and that “[m]andamus
relief under a breach of contract theory is improper.” Because we
have concluded that appellants may be able to demonstrate that
department officials were authorized to bind the county to the
deputy appellants’ settlement agreements (see Discussion,
part E, ante), we next decide whether the trial court abused its
discretion in denying leave to amend as to the mandamus causes
of action on the ground that appellants cannot enforce these
contracts via a writ of mandate. We conclude that leave to
amend should have been granted.
Code of Civil Procedure section 1085, subdivision (a)
provides: “A writ of mandate may be issued by any court to any
inferior tribunal, corporation, board, or person, to compel the
performance of an act which the law specially enjoins, as a duty
resulting from an office, trust, or station, or to compel the
admission of a party to the use and enjoyment of a right or office
to which the party is entitled, and from which the party is
60
unlawfully precluded by that inferior tribunal, corporation,
board, or person.” (Code Civ. Proc., § 1085, subd. (a).) In turn,
Code of Civil Procedure section 1086 states: “The writ must be
issued in all cases where there is not a plain, speedy, and
adequate remedy, in the ordinary course of law. It must be
issued upon the verified petition of the party beneficially
interested.” (Id., § 1086.) “There are two essential requirements
to the issuance of a traditional writ of mandate: (1) a clear,
present and usually ministerial duty on the part of the
respondent, and (2) a clear, present and beneficial right on the
part of the petitioner to the performance of that duty.”
(California Assn. for Health Services at Home, supra,
148 Cal.App.4th at p. 704.)
We agree with the trial court that “ ‘[a]s a general
proposition, mandamus is not an appropriate remedy for
enforcing a contractual obligation against a public entity.
[Citations.]’ [Citations.]” (300 DeHaro Street Investors v.
Department of Housing & Community Development (2008)
161 Cal.App.4th 1240, 1254 (300 DeHaro Street Investors).)
Our Supreme Court, however, has recognized that under
certain circumstances, a contract between a public entity and a
public employee can be enforced by a writ of mandamus. In
Glendale City Employees’ Assn., Inc. v. City of Glendale (1975)
15 Cal.3d 328 (Glendale City Employees’ Assn., Inc.), the high
court remarked: “The usual remedy for failure of an employer to
pay wages owing to an employee is an action for breach of
contract; if that remedy is adequate, mandate will not lie.
[Citation.] But often the payment of the wages of a public
employee requires certain preliminary steps by public officials; in
61
such instances, the action in contract is inadequate and mandate
is the appropriate remedy.” (Id. at p. 343.)
In Glendale City Employees’ Assn., Inc., an association of
employees of the City of Glendale and certain members thereof
secured from the trial court a writ mandamus to compel that city
and its councilmen to compute and pay compensation pursuant to
a formula included in the employees’ collective bargaining
agreement with the city. (See Glendale City Employees’ Assn.,
Inc., supra, 15 Cal.3d at pp. 332–334.) In granting writ relief, the
trial court concluded that “since ‘enforcement of the rights of
[plaintiffs] requires obtaining the official cooperation necessary to
implement the application of the formula agreed upon in the
Memorandum of Understanding. . . . [Plaintiffs] do not have a
speedy or adequate remedy at law to prevent the deprivation of
their rights other than by mandamus.’ ” (See id. at p 343,
fn. omitted.) On appeal, the defendants did not “challenge the
court’s conclusion that plaintiffs have no other adequate remedy,”
but instead claimed that “the remedy of mandamus [was] not
available” to compel “the adoption of a salary ordinance.” (See
ibid.) The Supreme Court rejected that argument, concluding
that the writ “did not command the enactment of a new salary
ordinance, but directed the non-legislative and ministerial acts of
computing and paying the salaries as fixed by the memorandum
and judgment.” 39 (See Glendale City Employees’ Assn., Inc., at
39 Although the defendants in Glendale City Employees’
Assn., Inc. did not contest the trial court’s opinion that
mandamus was the only adequate remedy available to the public
employees (see Glendale City Employee Assn., Inc., supra,
15 Cal.3d at p. 343), neither side characterizes as dictum the
Supreme Court’s statement to the effect that “mandate is the
62
p. 344; see also ibid. [“ ‘The critical question in determining if an
act required by law is ministerial in character is whether it
involves the exercise of judgment and discretion.’ ”].)
In Association for Los Angeles Deputy Sheriffs v. County of
Los Angeles (2019) 42 Cal.App.5th 918 (ALADS 2019), the Court
of Appeal relied on Glendale City Employees’ Assn., Inc. to
determine whether mandamus was a proper means of enforcing a
contract with a public entity. There, ALADS brought suit against
the county for allegedly “fail[ing] to comply with compensation
provisions described in a November 2015 memorandum of
understanding” (MOU), which “required the County to match
compensation increases given to other County safety employee
unions.” (See ALADS 2019, at pp. 922–923.) On appeal from a
judgment entered after the trial court sustained a demurrer, the
county argued “ALADS failed to allege facts necessary” to
support a “cause of action [that sought] a writ of mandate
directing the respondents (i.e., the County and unnamed Doe
parties) to ‘act in compliance with their ministerial duty under
the ALADS MOU by providing individuals represented by
ALADS with equivalent economic enhancements to those
provided to individuals represented by [another public safety
union].’ ” (See id. at pp. 924, 938–939.) Among other things, the
appropriate remedy” if implementation of a contract with a public
employee “requires certain preliminary steps by public officials . .
. .” (See ibid.) Regardless of whether this statement from the
Supreme Court’s decision is dictum, we follow it. (See California
Amplifier, Inc. v. RLI Ins. Co. (2001) 94 Cal.App.4th 102, 114
[“[L]egal pronouncements by the Supreme Court are highly
probative and, generally speaking, should be followed even if
dictum.”].)
63
county argued that this cause of action is “a ‘blatant attempt to
turn ALADS’ contract claims into a petition for writ of
mandate.’ ” (See id. at p. 939.)
In rejecting the county’s challenges to this mandamus
cause of action, the Court of Appeal found that Glendale City
Employees’ Assn., Inc.’s analysis “control[led.]” (See
ALADS 2019, supra, 42 Cal.App.5th at p. 939.) The ALADS 2019
court cited with approval our high court’s conclusion that “the
payment of a public employee’s wages often requires preliminary
steps by public officials, and that, in such instances, ‘the action in
contract is inadequate and mandate is the appropriate remedy.’
[Citation.]” (See ibid., quoting Glendale City Employees’ Assn.,
Inc., supra, 15 Cal.3d at p. 343.) Nevertheless, because “ALADS
did not name as defendants the appropriate County officials
responsible for computation and payment of the benefits it claims
its members are due based on the MOU[,]” the Court of Appeal
remanded the matter and directed the trial court to give ALADS
“leave to amend to name those officials.” 40 (See ALADS 2019, at
pp. 939–940.)
During the proceedings below in the matter before us, the
trial court found neither Glendale City Employees’ Assn., Inc. nor
ALADS 2019 established that appellants can obtain mandamus
relief. The trial court reasoned that “both cases involved
mandamus causes of action raised in the context of enforcing a
collective bargaining memorandum of understanding—an express
40 In the instant case, appellants named as defendants the
county, the board of supervisors, the sheriff’s department, the
sheriff, the county counsel, and the director of personnel.
Respondents do not claim that appellants would need to join any
other county officials to pursue their mandamus claims.
64
carve out to the general prohibition” against utilizing mandamus
to “ ‘enforce a contractual obligation against a public entity.’ ”
Although the contract at issue in each case was a collective
bargaining memorandum of understanding, neither decision
stated that only collective bargaining agreements are exempt
from the general rule that mandamus cannot be used to enforce a
contract against a public entity. (See Glendale City Employees’
Assn., Inc., supra, 15 Cal.3d at pp. 343–344; ALADS 2019, supra,
42 Cal.App.5th at pp. 938–940.)
Additionally, the trial court observed 300 DeHaro Street
Investors establishes that “the duty which mandamus enforces
is not the contractual duty of the entity, but the official duty of its
officer or board.” (Citing 300 DeHaro Street Investors, supra,
161 Cal.App.4th at p. 1254.) Respondents rely upon the
300 DeHaro Street Investors decision for essentially the same
proposition, to wit, “the existence of a contract does not create a
ministerial duty to perform that contract.” (Citing 300 DeHaro
Street Investors, at p. 1254.) Although we agree that
“[m]andamus will not lie to enforce a purely contractual
obligation” (see 8 Witkin, Cal. Procedure (6th ed. 2021)
Extraordinary Writs, § 80, p. 953, italics added), Glendale City
Employees’ Assn., Inc. and ALADS 2019 establish that
mandamus is proper insofar as public officials would need to
undertake certain ministerial duties to implement a contract
with a public employee. (See Glendale City Employees’ Assn.,
Inc., supra, 15 Cal.3d at p. 343; ALADS 2019, supra,
42 Cal.App.5th at p. 939; see also San Diego City Firefighters,
Local 145, supra, 206 Cal.App.4th at p. 613, fn. 15 [“Case law
permits a party to pursue a writ of mandate under Code of Civil
Procedure section 1085 as a means to compel a public agency to
65
take nondiscretionary action necessary to comply with a
contractual obligation[,]” citing, inter alia, Glendale City
Employees’ Assn., Inc., at pp. 343–345].)
We recognize the Court of Appeal in 300 DeHaro Street
Investors stated that “ ‘the duty which the writ of mandamus
enforces is not the contractual duty of the entity, but the official
duty of the respondent officer or board[,]’ ” and that “ ‘ “the law
imposes upon municipal corporations and their officers no special
duty to carry out the terms of contracts or to refrain from
breaches of contractual relations.” ’ ” (300 DeHaro Street
Investors, supra, 161 Cal.App.4th at p. 1254.) Yet, the
300 DeHaro Street Investors court made these statements in a
context inapposite to the claims before us.
There, an owner of real property and a state agency had
executed an agreement under which the owner would receive a
low-interest loan if the owner rented units to low-income
households. (See 300 DeHaro Street Investors, supra,
161 Cal.App.4th at p. 1243.) The contract “called for the [agency]
to approve specified rent increases if [the owner] proved specified
matters to the [agency’s] satisfaction.” (See ibid.) Upon the
agency’s denial of the owner’s request for a rent increase, the
owner brought suit for declaratory relief and to recover damages
for breach of contract. (See id. at pp. 1244–1246, 1248.)
The trial court sustained the state agency’s demurrer, and on
appeal from the resulting judgment, the Court of Appeal
concluded that the owner could pursue its contract claim, and
that the owner was not relegated to seeking only a writ of
mandamus against the agency, because the agency’s liability
arose from a contract. (See id. at pp. 1254–1257.) The Court of
Appeal also concluded that the agency forfeited its contention
66
that the owner could not obtain declaratory relief to review an
administrative decision. (See id. at p. 1257.) The opinion
does not address whether agency officials would have needed to
undertake any preliminary, ministerial steps in order to provide
the owner with the damages and declaratory relief it had sought.
(See id. at pp. 1254–1257 [the court’s discussion regarding
whether the owner was required to pursue mandamus under
Code Civ. Proc., § 1085].) Simply put, 300 DeHaro Street
Investors does not foreclose appellants from seeking mandamus
relief in the instant case. (See In re H.E. (2008) 169
Cal.App.4th 710, 721 [“ ‘Language used in any opinion is of
course to be understood in the light of the facts and the issue
then before the court, and an opinion is not authority for a
proposition not therein considered.’ ”].)
In addition, appellants’ briefing indicates that if they were
granted leave to amend, they could show that implementation of
the settlements would “require[ ] certain preliminary steps by
public officials” giving rise to mandamus claims. (See Glendale
City Employees’ Assn., Inc., supra, 15 Cal.3d at p. 343.) More
specifically, in their opening brief, appellants claim that to “carry
out the obligations of the contracts[,]” county officials need to
discharge “duties” that are “ministerial in nature,” to wit,
“restoring [a]ppellants to their positions and providing them with
the emoluments of their employment . . . .” Similarly, appellants
claim in their reply brief that each settlement “give[s] rise to
ministerial obligations[,]” including “the requirement to approve
the settlement agreement, to reinstate the deputy, and to provide
him or her [with] the emoluments of employment, as required by
the agreement.”
67
Even respondents’ briefing suggests that to implement the
settlements, county officials would need to carry out certain
ministerial duties. Specifically, respondents contend in their
supplemental opening brief that the “Director of Personnel
controls reinstatement.” We do not have to decide the merits of
this contention, 41 but only note that even if respondents are
correct on that point, it is possible that the director of personnel’s
duties relating to reinstatement are ministerial in nature.
Given these circumstances, we are unable to find “ ‘ “there
is no possibility of [appellants] alleging facts under which
recovery can be obtained” ’ ” via their claims for writ of mandate.
(See Tarrar Enterprises, Inc., supra, 83 Cal.App.5th at p. 689.)
The trial court thus abused its discretion in denying appellants
leave to amend their initial petition/complaint to replead their
claims for mandamus relief. (See id. at pp. 688–689.)
G. Appellants Are Not Entitled to Leave To Replead the
Portion of Their Declaratory Relief Cause of Action
That Is Predicated on a Due Process Theory
We add one final note regarding the scope of appellants’
leave to amend. If appellants show that the sheriff and his
subordinates are authorized to settle appeals before the
commission, then they would have cured the defect upon which
the trial court’s order sustaining the demurrer to their contract,
estoppel, and declaratory relief claims (i.e., the second, third,
fifth, sixth, eighth, ninth, and tenth causes of action) was
premised, to wit, the settlement agreements are void. If
41 Indeed, in our Discussion, part E.2, ante, we note that
respondents fail to support this contention with legal authority or
analysis.
68
appellants also demonstrate that implementation of the
settlements requires county officials to undertake certain
ministerial duties, then they would have stated viable mandamus
causes of action as well (i.e., the first, fourth, and seventh causes
of action). (See Discussion, part F, ante.)
We acknowledge, however, that a portion of appellants’
tenth cause of action for declaratory relief is premised on a due
process theory that appellants have failed to substantiate. (See
Discussion, part D, ante.) Specifically, appellants have not shown
the existence of a benefit or interest triggering procedural due
process protections, and inasmuch as they claim to have a
protected right to employment with the department, they fail to
show that procedural due process guarantees them an
opportunity to settle disciplinary charges. (See ibid.) Even if
appellants demonstrated upon remand that department
personnel are authorized to settle disciplinary appeals before the
commission, appellants still would have failed to cure these
defects in their due process theory. Accordingly, the trial court
did not abuse its discretion in denying leave to amend as to the
portion of appellants’ tenth cause of action that alleged a due
process violation. (See Long v. Century Indemnity Co. (2008)
163 Cal.App.4th 1460, 1468 [“ ‘[L]eave to amend should not be
granted where . . . amendment would be futile.’ ”].)
DISPOSITION
We grant respondents’ request for judicial notice of
San Bernardino County Code section 12.1907, which is found
within exhibit B of the request for judicial notice that
respondents filed on March 22, 2023. We deny respondents’
request for judicial notice of (1) the San Bernardino County
Charter and (2) the remainder of the San Bernardino County
69
Code, both of which are found in exhibit B of respondents’
March 22, 2023 request for judicial notice. We deny respondents’
May 10, 2023 request for judicial notice of “Los Angeles Sheriff’s
Department Organizational Charts, dated April 3, 2017 and
June 5, 2018.”
We reverse the trial court’s judgment of dismissal, and
remand with instructions to (1) vacate the court’s
February 5, 2021 and August 9, 2021 orders sustaining
respondents’ demurrers without leave to amend; (2) issue a new
order (a) sustaining the demurrers as to the first, second, third,
fourth, fifth, sixth, seventh, eighth, ninth, and tenth causes of
action; (b) denying leave to amend vis-à-vis appellants’ tenth
cause of action insofar as it is predicated on a due process
violation; and (c) granting leave to amend as to the first, second,
third, fourth, fifth, sixth, seventh, eighth, and ninth causes of
action and the remainder of the tenth cause of action; and
(3) conduct further proceedings consistent with this opinion. The
parties are to bear their own costs on appeal.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. WEINGART, J.
70
Filed 8/18/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ASSOCIATION FOR B316067
LOS ANGELES DEPUTY
SHERIFFS et al., (Los Angeles County
Super. Ct. No. 19STCP05186)
Appellants,
CERTIFICATION AND ORDER
v. FOR PUBLICATION
COUNTY OF LOS ANGELES et al., [NO CHANGE IN JUDGMENT]
Respondents.
The opinion in the above-entitled matter filed on
July 27, 2023, was not certified for publication in the
Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.
There is no change in the judgment.
CERTIFIED FOR PUBLICATION.
____________________________________________________________
ROTHSCHILD, P. J. BENDIX, J. WEINGART, J.