Ventura County Prof. Peace Officers Assn. v. County of Ventura CA2/6

Filed 6/22/22 Ventura County Prof. Peace Officers Assn. v. County of Ventura CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
VENTURA COUNTY 2d Civ. No. B313103
PROFESSIONAL PEACE (Super. Ct. No. 56-2019-
OFFICERS ASSOCIATION, 00535968-CU-WM-VTA)
(Ventura County)
Plaintiff and Respondent,
v.
COUNTY OF VENTURA, et al.,
Defendants and Appellants.
Respondent Ventura County Professional Peace Officers
Association (Union) sued appellant Ventura County Probation
Agency (Agency) over the Agency’s failure to timely complete
performance reviews of its corrections officers. The Agency
moved to compel the action to arbitration (Code Civ. Proc.,
§ 1281.2), citing a provision of their Memorandum of Agreement
(MOA) requiring the Union to submit certain complaints to a
multi-step grievance procedure culminating in binding
arbitration. The trial court found no valid agreement to arbitrate
existed and denied the motion. We reverse.
The MOA requires the Union and its members to resolve
disputes with the Agency through a grievance procedure. The
term “grievance” is defined to include any complaint or dispute
arising from a violation of the MOA’s terms. The Union’s
allegations fall within this broad definition. (MOA, § 3002.)1 As
such, the Union was required to resolve its claims through the
grievance procedure, or, in the alternative, to show the Agency
waived or repudiated the procedure. The Union did neither. The
trial court should have granted the Union’s motion to compel.
FACTUAL AND PROCEDURAL BACKGROUND
The Union serves as the collective bargaining unit for the
Agency’s corrections officers. The MOA governs labor relations
between the Agency and the Union’s members.2 The MOA
includes a grievance procedure “intended to create an orderly and
fair method for processing grievances and resolving disputes.”
Complaints may be filed by individual members as well as by the
Union itself. Member complaints are resolved in four steps. The
member must first discuss it informally with their immediate
supervisor. They may appeal the supervisor’s decision to the
Division Head (the second step) then to the Agency Head (the
third). The fourth and final step is submitting the complaint to a
mutually agreeable arbitrator, or, if the Agency and member
cannot agree, to one selected from a list provided by the
1All section references are to the Agency’s MOA unless
otherwise noted.
2 The record contains excerpts from the MOAs for 2014-
2018 and 2018-2021. We grant the Union’s request for judicial
notice of the MOA for 2021-2024. The provisions relevant to this
appeal are identical in each version.
2
California State Mediation and Conciliation Service.3 The
process is identical for complaints raised by the Union, but the
MOA permits the Union to skip the informal first step and
initiate the process directly with the responsible Division Head.
The MOA requires the Agency to review each Union
member’s performance annually.4 The Agency completed a
review of corrections officer Matthew Breslin in March of 2016.
It covered the 2015 work year. Breslin’s supervisor assessed him
as performing at or above expectations in most categories.
However, the supervisor also commented that Breslin
“continually resisted and voiced his disapproval of” the Agency’s
effort to implement a program designed to better treat and
manage detained youth, especially those with mental health
issues. Breslin believed these comments were inaccurate and
overly subjective. He submitted a written rebuttal giving his own
account of the incidents in question. The County attached the
rebuttal to his review as required by the MOA but did not
respond further.
Nearly three years passed. In February of 2019, Breslin
initiated the MOA’s grievance procedure during an informal
discussion with his direct supervisor. He followed up with formal
written complaints to his Division Head (the second step) and
Agency Head (the third). Breslin accused the Agency of
completing his 2015 review three months past the deadline and
3 The California State Mediation and Conciliation Service is
a division of the Public Employment Relations Board which
provides mediation and arbitration services in labor disputes
involving public agencies. (Gov. Code, § 3600 et seq.)
4The employee must receive the review no later than 14
days prior to their work anniversary. (§ 1901.)
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reiterated his previous concerns about his supervisor’s objectivity
and veracity. He requested the Agency modify the review’s scores
and comments to align with MOA criteria.
Agency Head Tim Dowler told Breslin his complaints were
excluded from the grievance procedure. The only method
available to voice his concerns was to attach a rebuttal to his
review, which he had already done. Even if the complaints were
subject to the procedure, Dowler concluded the MOA’s 21-day
filing deadline had long since passed. He declined to modify the
review but acknowledged it was important “that performance
reviews are drafted, reviewed and submitted in a timely fashion
and in compliance with the MOA and best practices.” For
reasons not stated in the record, Breslin and the Agency
stipulated Breslin’s grievance was not subject to arbitration.
Breslin filed a combined petition for writ of mandate and
complaint for breach of contract against the Agency. The Union
joined as his co-plaintiff. The scope of their lawsuit went beyond
Breslin’s original complaint. They now alleged the Agency
“engaged, and continue[d] to engage, in widespread failure” to
timely review corrections officers.5 They sought: a peremptory
writ directing the Agency to comply with employee review
requirements; an order declaring the Agency’s “contractual and
administrative obligations”; attorney’s fees; and monetary
damages. The trial court overruled the Agency’s demurrer. After
limited discovery, the Agency moved for summary judgment of
Breslin’s claims and moved to compel the Union’s claims to
arbitration under the MOA’s grievance procedure. The court
5We cite from the operative pleading, i.e., the Union and
Breslin’s First Amended Verified Petition for Writ of Mandate
and Complaint for Breach of Contract and Declaratory Relief.
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denied the motion to compel arbitration but granted summary
judgment against Breslin.
The Agency appeals the denial of its motion to compel
arbitration. (See Code Civ. Proc., § 1294, subd. (a) [“An aggrieved
party may appeal from: [¶] (a) An order dismissing or denying a
petition to compel arbitration”].) Breslin does not challenge entry
of summary judgment and is not a party to this appeal.
DISCUSSION
A. The Union’s Dispute with the Agency Is Subject to the
MOA’s Grievance Procedure
“‘It is the general rule that a party to a collective
bargaining contract which provides grievance and arbitration
machinery for the settlement of disputes within the scope of such
contract must exhaust these internal remedies before resorting to
the courts in the absence of facts which would excuse him from
pursuing such remedies.’” (Charles J. Rounds Co. v. Joint
Council of Teamsters (1971) 4 Cal.3d 888, 894 (Charles J. Rounds
Co.), quoting Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558,
563.) “When, as here, no conflicting extrinsic evidence is
introduced to aid the interpretation of an agreement to arbitrate,
the Court of Appeal reviews de novo a trial court’s ruling on a
petition to compel arbitration.” (California Correctional Peace
Officers Assn. v. State of California (2006) 142 Cal.App.4th 198,
204, citing Hartnell Community College Dist. v. Superior Court
(2004) 124 Cal.App.4th 1443, 1448-1449.) “If such an agreement
exists, the court must order the parties to arbitration unless
arbitration has been waived or grounds exist to revoke the
agreement.” (Id. at p. 205, citing Valsan Partners Limited
Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th
809, 817.)
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The MOA requires resolving certain matters through the
grievance procedure. (§ 3004.) Section 3002 defines a “grievance”
as “a claim or dispute by an employee, a group of employees, or
[the Union] concerning a violation, misinterpretation, or
inequitable application of . . . [t]he terms of this Agreement.” The
parties agree this definition encompasses the Union’s concerns.
They do not agree, however, how to interpret the exclusionary
provision that immediately follows. Section 3003 states:
“MATTERS EXCLUDED FROM THE GRIEVANCE
PROCEDURE: Except as provided in Section 3002, all other
matters are specifically excluded from this procedure including,
but not limited to, complaints which arise from the following:
[¶¶] C. Performance review evaluations.” The Union interprets
this language as allowing it to bypass the grievance procedure
because this dispute centers on the Agency’s alleged failure to
timely review employee performance. In contrast, the Agency
interprets the phrase “Except as provided in Section 3002” as
requiring any dispute over the MOA’s terms to the procedure
regardless of whether performance reviews are at issue.
The Agency’s interpretation is more persuasive. The MOA
clearly describes any claim or dispute concerning a violation of its
terms as a grievance. The Union’s combined complaint and writ
petition alleges the Agency is violating the MOA’s terms by not
reviewing the performance of its corrections officers. Such claims
must proceed according to the grievance procedure. The Union
must initiate this procedure by submitting a formal written
grievance to the appropriate division head; it did not do so here.
(§ 3004(A), (B).) The trial court used the same reasoning when it
granted summary judgment. It found Breslin’s complaints were
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a “grievance” subject to the procedure’s long-expired MOA’s 21-
day deadline.6
The trial court nevertheless found section 3005(A)’s use of
the term “may” rather than “shall” meant the grievance
procedure was a voluntary option the Union alone could decide to
pursue.7 The court likening it to the one-sided, unconscionable
arbitration clauses discussed in Armendariz v. Foundation
Health Services (2000) 24 Cal.4th 83 and denied the motion to
compel on these grounds alone. The court thereafter ignored the
threshold question of whether the Union’s complaints were
subject to the procedure in the first instance.
Section 3004(A) states the Union shall submit any
grievance to the appropriate division head. Subsequent use of
the verb may in sections 3004 and 3005 does not render the
entire procedure permissive or unilateral. The grievant may or
may not decide whether to proceed to the next step of the
procedure. If they do, the Agency must participate.8 The MOA
6An employee must complain informally to his supervisor
no more than 21 calendar days “from the discovery of the act or
omission causing the complaint.” (MOA, §3004(A)(1).)
7 Section 3005(A) states in relevant part: “A grievance
unresolved in the steps enumerated above may be submitted to
arbitration by [the Union] by submitting a letter requesting that
the grievance be submitted to arbitration . . . .” (Italics added.)
8“Arbitration” under Code of Civil Procedure section 1281.2
means any form of dispute resolution with “a third party decision
maker and some decree of impartiality.” (Cheng-Canindin v.
Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 687.)
The grievance procedure culminates in a “final and binding”
award by a third-party neutral and thus meets these criteria.
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does not resemble the contracts of adhesion encountered in
Armendariz. The trial’s court’s focus on the existence of an
“agreement to arbitrate” distracted it from the issue of whether
the Union’s claims constituted grievances under the MOA.
B. The Agency Did Not Repudiate the Grievance Procedure
When It Denied Breslin’s Grievance
The Union contends that even if its complaint were subject
to the grievance procedure, the Agency repudiated the procedure
when Breslin’s superiors twice told him the opposite. (See
Farahani v. San Diego Community College Dist. (2009) 175
Cal.App.4th 1486, 1497, citing Doster v. County of San Diego
(1988) 203 Cal.App.3d 257, 260-261 [“Plaintiff need not exhaust
administrative remedies . . . if the agency has already rejected
the claim, announced its position on the claim or made clear it
would not consider the plaintiff's evidence”].) These responses
might constitute a repudiation if Breslin’s complaints were at
issue. They were not. The Union’s complaints are the subject of
this appeal. Breslin’s superiors were responding to one
employee’s complaint about a performance review given three
years prior. Neither response signaled the Agency would take
the same position if the Union were to submit a separate
grievance addressing broader evaluation practices.9
9 The Union cites the pre-lawsuit stipulation signed by the
Agency and Breslin as likewise contradicting the Agency’s
position on appeal. It does not. The stipulation concerns only
Breslin’s complaints, and, more specifically, the arbitrability of
Breslin’s February 2019 grievance.
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C. The Agency Did Not Waive the Grievance Procedure By
Litigating Its Dispute With the Union
The Union contends the Agency waived the grievance
procedure by litigating for more than a year before moving to
compel arbitration. It argues the Agency should have
immediately moved to compel instead of demurring and serving
discovery requests.10 (See International Assn. of Bridge, etc. v.
Superior Court (1978) 80 Cal.App.3d 346, 358 [waiver “involves
the question of whether petitioner, though its conduct of
litigation below, has waived its right to insist upon the real
party’s compliance with the contractual grievance procedure”].)
There was no waiver. The Agency prefaced its demurrer
with a request to “send plaintiffs back to the grievance procedure
under the MOA.” When the court overruled the demurrer, the
Agency filed an answer in which it pleaded failure to exhaust
administrative remedies as an affirmative defense. It served a
single set of form interrogatories and requests for admission,
then moved to compel
nine months after the trial court overruled the demurrer.
This was a reasonable timeline considering it also needed to
prepare a motion for summary judgment of Breslin’s separate
claims as well. The procedural path the Agency selected was
appropriate.11 (See, e.g., Charles J. Rounds Co., supra, 4 Cal.3d
Code of Civil Procedure section 1281.7 permits a
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defendant to move to compel arbitration in lieu of answering a
complaint.
11 Moving to compel arbitration under section 1281.2 was
not the only means the Agency could have used to move its claims
into an administrative forum. The Agency could have moved for
summary judgment on its exhaustion affirmative defense (Id.
§ 437c); moved for judgment on the pleadings (Id. § 438); or
9
at p. 899 [“[W]here plaintiff has not first pursued or attempted to
pursue his arbitration remedy,” a defendant “could elect to
submit the matter to the jurisdiction of the court” or “may also
elect to demur or move for summary judgment on the ground that
the plaintiff has failed to exhaust arbitration remedies”].)
DISPOSITION
The order denying the Agency’s motion to compel is
reversed. The matter is remanded to the trial court with
directions to dismiss the Union’s case without prejudice, or, in the
alternative, stay the case pending the Union’s exhaustion of
administrative remedies under the MOA.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
requested the court bifurcate trial and decide the defense before
the Union’s substantive claims.
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Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Tiffany N. North, County Counsel, and Thomas W. Temple,
Assistant County Counsel, for Defendants and Appellants.
Rains Lucia Stern St. Phalle & Silver, Richard A. Levine
and Michael A. Morguess, for Plaintiff and Respondent.
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