Filed 3/12/15 City of Colton v. Guerrero CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
CITY OF COLTON,
Plaintiff, Cross-defendant and E058346 Respondent, (Super.Ct.No. CIVDS1000475) v. OPINION KRIS GUERRERO,
Defendant, Cross-complainant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan Foster and
Brian S. McCarville, Judges. Affirmed.
Lackie Dammeier & McGill, Michael A. Morguess; Silver, Hadden, Silver,
Wexler & Levine, Brian Ross and Richard A. Levine for Defendant, Cross-complainant
and Appellant.
Best Best & Krieger, Kira L. Klatchko and Irene S. Zurko for Plaintiff, Cross-
defendant and Respondent.
1 BACKGROUND
Defendant, cross-complainant and appellant Kris Guerrero appeals an order
denying his motion to compel arbitration following plaintiff, cross-defendant and
respondent City of Colton’s termination of his employment as a police officer and
granting the city’s petition for a permanent injunction enjoining him from pursuing
arbitration.
The memorandum of understanding (MOU) between the city and the police
officers’ association provides for arbitration of grievances for certain disciplinary actions,
including a dismissal taken against officers who are permanent employees. Guerrero
contends that he had completed his probationary period before the city purported to
extend it, and that he was a permanent employee when he was dismissed. The city
contends, and the trial court found, that Guerrero was a probationary employee and was
not entitled to arbitration.
The issue arose as follows.1 Guerrero was hired by the City of Colton (hereafter
the city) as a police officer in April 2007. As a new hire, he was subject to a period of
probation. He contended that he was a lateral officer, i.e., a newly hired officer with prior
police experience, and that pursuant to the policies of the Colton Police Department then
in effect, he was subject to a 12-month probationary period rather than the 18-month
1 The following information is taken from our opinion in Guerrero v. City of Colton (Apr. 14, 2012, E052441) [nonpub. opn.] (Guerrero I). It is derived from the allegations of the complaint and cross-complaint. These facts are largely undisputed. It is their effect on Guerrero’s right to arbitration that is disputed. Additional facts will be stated in connection with specific issues raised in this appeal.
2 probation which would otherwise apply to a newly hired police officer. The city
contended that he was subject to the 18-month probation. He was put on administrative
leave on May 15, 2008, pending investigation of allegations of misconduct. In September
2008, the city notified Guerrero that his probationary period was being extended for six
months, to April 15, 2009, in part because he had been on administrative leave for three
months, leaving insufficient time to evaluate his performance. (Guerrero I, supra,
E052441.)
In November 2008, the city finished its investigation into the allegations of
misconduct and recommended termination of Guerrero’s employment. Although the city
did not consider Guerrero a permanent employee and did not believe he was entitled to a
hearing prior to termination, “out of an abundance of caution,” the city afforded him an
opportunity to be heard, before terminating his employment. On February 2, 2009, after
the hearing, the city terminated Guerrero’s employment. However, as a result of some
internal miscommunication and misunderstanding of its own procedures, the city—again
“out of an abundance of caution”—decided to voluntarily afford Guerrero the appeal
process provided for permanent employees in the MOU. This process includes an
evidentiary hearing before an arbitrator. (Guerrero I, supra, E052441.)
In August 2009, Guerrero and the city selected an arbitrator. Subsequently, the
city discovered “indisputable proof” that Guerrero’s probation had been validly extended
and that he was a probationary employee when he was terminated. Accordingly, the city
refused to proceed with the arbitration. The arbitrator, however, refused to relinquish
jurisdiction over the proceedings, and on January 15, 2010, the city filed a complaint for
3 declaratory and injunctive relief in the Superior Court of San Bernardino County. It
sought a declaration that Guerrero was a probationary employee at the time of his
termination and that he was not entitled to arbitration, and it sought a temporary
restraining order, a preliminary injunction, and a permanent injunction enjoining the
occurrence of any arbitration or appeal hearing between Guerrero and the city.
(Guerrero I, supra, E052441.)
The trial court issued a temporary restraining order and, on April 7, 2010, it issued
a preliminary injunction. The trial court found that the city was likely to prevail on the
merits of its position that Guerrero was a probationary employee at the time of his
termination with no standing to compel arbitration under the MOU, that the city would be
irreparably harmed if compelled to go through arbitration, and that Guerrero would not be
irreparably harmed if arbitration was not compelled because he had already received
additional due process to which he was not entitled. (Guerrero I, supra, E052441.)
On March 3, 2010, prior to the court’s ruling on the motion for preliminary
injunction, Guerrero filed a cross-complaint entitled “Verified Petition to Compel
Arbitration”; “Verified Petition for Writ of Mandate”; “Complaint for Damages and
Injunctive Relief.” On August 16, 2010, he filed a motion to compel arbitration. After
briefing and a hearing, the trial court denied the motion. The court found that the motion
raised exactly the same contention it had addressed in the motion for preliminary
injunction. It found that the motion was effectively a request for reconsideration, but one
which did not comply with the requirements of section 1008 of the Code of Civil
4 Procedure. It denied the motion solely on that procedural ground. (Guerrero I, supra,
Guerrero filed a timely notice of appeal from the order denying his motion to
compel arbitration. (Guerrero I, supra, E052441.) We determined that the motion
depended upon the resolution of disputed facts. We reversed and remanded, directing the
trial court to hold an evidentiary hearing “‘on factual issues relating to the threshold issue
of arbitrability, i.e., whether, under the facts before the court, the contract excludes the
dispute from its arbitration clause or includes the issue within that clause.’ [Citation.]”
On remand,2 the parties filed a series of supplemental briefs. At a hearing on
September 14, 2012, the trial court determined that it, rather than the arbitrator, should
decide Guerrero’s status as a probationary or permanent employee. After a further
hearing on October 26, 2012, at which the parties agreed to submit the issue on the papers
on file and after further argument, the court issued a statement of decision, finding that
Guerrero was subject to an 18-month probationary period; that in the pertinent ordinance,
the city did not distinguish between lateral hires and other hires; that the policies and
procedures of the police department do not supersede the city’s ordinances; that the city
validly extended Guerrero’s probation for an additional six months to April 15, 2009; that
the city’s failure to provide a performance evaluation report does not extend the
2 Guerrero states that the current proceedings took place on remand from this court “on an unrelated issue.” We are baffled by this characterization of our remand order, which afforded him the hearing before the trial court which is the subject of this appeal.
5 probationary period; and that no action by the city acted as an estoppel to prevent
Guerrero’s discharge without arbitration.
Judgment was entered denying Guerrero’s petition for arbitration and permanently
enjoining him from pursuing arbitration with the City of Colton. The court awarded costs
and attorney fees to the city.
Guerrero filed a timely notice of appeal.
LEGAL ANALYSIS
THE TRIAL COURT PROPERLY DENIED THE PETITION TO COMPEL ARBITRATION
The City’s Withdrawal from the Arbitration After It Had Begun Is Permissible If
Guerrero Was Not Entitled to Arbitration.
Guerrero begins by asserting that the city could not withdraw from the arbitration
once it had begun, or as he puts it, the city could not “wrest jurisdiction from an arbitrator
who has already assumed jurisdiction, and to whom both parties have already voluntarily
submitted.” However, Guerrero makes no persuasive argument that if the arbitration was
voluntary, rather than mandated by the MOU, the city could not choose to withdraw
before the arbitration was complete. Guerrero cites several statutes, but does not offer
any analysis as to their effect in this situation. He merely states that the statutes do not
provide the city with the option of withdrawing from arbitration once it has commenced.
The statutes he cites—Code of Civil Procedure sections 1286.2 through 1286.8,
pertaining to the vacation and correction of arbitration awards, and Civil Code section
1577, pertaining to mistake of fact—do not offer any support for his contention that once
6 the arbitration had begun, the city was compelled to proceed merely because it had
voluntarily engaged in the process.
The Court Had Jurisdiction to Determine Whether Guerrero Was a Permanent
Employee.
Next, Guerrero contends that his status as a permanent or probationary employee
was exclusively subject to arbitration by the terms of the MOU and that the trial court had
no jurisdiction to determine his status. He contends that the trial court’s jurisdiction was
limited to determining whether the dispute was arbitrable on its face. We disagree.
If an MOU between a public employees’ representative organization and a public
entity provides for arbitration of employee-employer disputes, a disagreement concerning
the arbitrability of a particular dispute is subject to resolution by a court, unless the MOU
expressly grants the arbitrator the authority to determine arbitrability. (City of Los
Angeles v. Superior Court (2013) 56 Cal.4th 1086, 1093, 1096.) If the MOU does not
expressly confer that authority on the arbitrator, a court determining whether a party has a
contractual duty to arbitrate a particular dispute must “‘examine and, to a limited extent,
construe the underlying agreement.’ [Citation.]” (Id. at p. 1096.) “For disputes arising
under collective bargaining agreements, there is a ‘presumption of arbitrability,’ under
which a court should order arbitration of a grievance ‘“unless it may be said with positive
assurance that the arbitration clause is not susceptible of an interpretation that covers the
asserted dispute.”’ [Citations.] ‘This presumption of arbitrability for labor disputes
recognizes the greater institutional competence of arbitrators in interpreting collective-
bargaining agreements, “furthers the national labor policy of peaceful resolution of labor
7 disputes[,] and thus best accords with the parties’ presumed objectives in pursuing
collective bargaining.”’ [Citations.]” (Ibid.)
Subject to this limitation, however, arbitration agreements are construed using the
principles applicable to contracts generally. (Provencio v. WMA Securities, Inc. (2005)
125 Cal.App.4th 1028, 1031.) “When there is no conflicting evidence regarding the
interpretation of an arbitration agreement, we exercise our independent judgment to
determine as a matter of law whether the agreement applies to a controversy. Where the
trial court’s decision of arbitrability is based on disputed facts, however, the substantial
evidence standard applies. Under that test, we must: accept the trial court’s resolution of
disputed facts when supported by substantial evidence; presume the court found every
fact and drew every permissible inference necessary to support its order; and defer to its
determinations regarding the credibility of witnesses and the weight of the evidence.”
(Ibid.) Here, there was no conflicting evidence concerning interpretation of the MOU.
Accordingly, we will determine the scope of the MOU independently.
The language of the MOU quoted by Guerrero does not expressly provide that
arbitrators are empowered to decide their own jurisdiction. The quoted passage, which
falls under the heading “Definitions,” states, “Grievance—An alleged violation or non-
compliance with the provisions of this MOU, any supplemental MOU, City of Colton’s
written or unwritten personnel rules and regulations, departmental rules and regulations,
and other policies and practices. The following disciplinary actions taken against
permanent employees are appealable under this procedure:
8 “a. Suspensions
“b. A salary reduction [sic]
“c. Demotions
“d. Dismissals.” (MOU, art. I, § 3(B), ¶ 3.)
This merely defines what constitutes a grievance and provides that four particular
types of grievances are “appealable” by permanent employees.3 It does not state that an
arbitrator is empowered to decide whether a particular dispute is or is not subject to
arbitration. Nor does any other language in the MOU address that question.
Accordingly, because the MOU does not expressly confer that authority on the arbitrator,
the trial court had jurisdiction to determine arbitrability. (City of Los Angeles v. Superior
Court, supra, 56 Cal.4th at p. 1096.)
Guerrero argues that if he had “simply filed a grievance on whether he was a
permanent employee, such issue clearly would have culminated in arbitration.” He
contends that the fact that the city voluntarily submitted the dismissal to arbitration on the
assumption that Guerrero was a permanent employee, thus obviating the need for him to
file a grievance to determine his status, should have no effect on his right to arbitration of
his status.
We disagree that a grievance as to Guerrero’s status would necessarily have
culminated in arbitration. The language of the MOU is ambiguous, to say the least. The
MOU expressly provides that dismissal and three other specified disciplinary actions
3 As we discuss below, the MOU does not explicitly define “appeal.”
9 taken with respect to a permanent employee are “appealable.” The parties understand
this to mean that such grievances are necessarily resolved through arbitration. However,
the MOU does not define “appeal” or explicitly state that “appeal” equals arbitration.
Nor does it provide any basis for concluding that an appealable grievance is necessarily
an arbitrable grievance. On the one hand, under “General Provisions,” it states
“Grievance/Appeal hearings—by an arbitrator shall be private.” (MOU, art. I, § 3(C),
¶ 7.) This appears to equate appeals with arbitration. On the other hand, however, the
MOU also provides that after having exhausted several preliminary steps in the general
grievance process—i.e., the process by which grievances other than the four types of
grievances addressed in article I, section 3(B), paragraph 3—an employee may submit a
written appeal to the city manager. If the employee is unsatisfied with the city manager’s
resolution, the employee may then “request” arbitration. (MOU, art. I, § 3(C), ¶¶ 4, 5.)
This part of the MOU thus distinguishes between “appeal” and “arbitration.”
Under the Public Safety Officers Procedural Bill of Rights Act, or POBRA (Gov.
Code, § 3300 et seq.), a permanent police officer is entitled to a full evidentiary hearing
before a neutral adjudicator with respect to serious punitive actions, such as demotion,
suspension, reduction in pay and dismissal, although a lesser level of due process may
suffice for less serious disciplinary actions. (See James v. City of Coronado (2003) 106
Cal.App.4th 905, 909-910.) Arguably then, the MOU can be interpreted to provide that a
permanent employee has the right to arbitration of the four disciplinary actions stated in
article I, section 3(B), paragraph 3, while both permanent and probationary employees
can “request” arbitration of all other types of grievances. (MOU, art. I, § 3(B), ¶ 2
10 defines “grievant” as “[a]ny person employed full-time by the City.” It does not exclude
probationary employees.) It is not clear that arbitration must be afforded upon request
under the general grievance procedure, however, or whether it is within the discretion of
the city manager to allow arbitration. (MOU, art. I, § 3(C), ¶ 5.) If it is within the
discretion of the city manager, then although Guerrero could have filed a grievance
seeking confirmation that he was a permanent employee, the grievance process would not
necessarily have culminated in arbitration.
For purposes of this issue, however, we do not need to resolve this ambiguity,
because in Guerrero I, supra, E052441, we directed the trial court to resolve the
“disputed factual issues” underlying the motion to compel arbitration. These issues
included Guerrero’s status as probationary or permanent. (Ibid.) Accordingly, we review
the trial court’s finding only to determine whether it is supported by substantial evidence.
(Provencio v. WMA Securities, Inc., supra, 125 Cal.App.4th at p. 1031.)
Substantial Evidence Supports the Trial Court’s Finding That Guerrero Was Not a
Permanent Employee When He Was Dismissed.
Guerrero contends that it was undisputed that he was a lateral officer, i.e., a person
“who possesses a Basic Certificate issued by Peace Officer Standards and Training, State
of California, or any person who has successfully completed a Basic Academy certified
by Peace Officer Standards and Training, State of California.” (Personnel System Rules
and Regulations for the City of Colton (hereafter Personnel Rules), rule VII, § 5.) He
contends that a lateral officer is subject to a 12-month probation, while a new hire is
subject to an 18-month probation. He contends that he had completed his 12-month
11 probation before the city purported to extend his probation and before he was dismissed.
The city responds that it is irrelevant whether Guerrero was a lateral officer, because a
city ordinance provides for an 18-month probation for all newly hired officers, lateral or
otherwise.
The city relies on its Ordinance No. 1653, which provides that “. . . Paragraph A
of Section 2.48.080 of the Colton Municipal Code [is] amended to read as follows:
[¶] . . . [¶] A. All regular and promotional appointments shall be tentative and subject to
a probationary period of eighteen months for police officers . . . .” It does not provide for
an exception for lateral officers. However, Ordinance No. 1653 was superseded by
Ordinance No. 0-03-00, section 8, in 2000. (Colton Mun. Code, § 2.48.080.) As of 2000,
section 2.48.080 no longer addresses probationary periods for police officers.4 We have
found no successor ordinance which does address probationary periods for police
4 Current Colton Municipal Code section 2.48.080, now entitled “Request for hearing,” provides: “A. Any permanent, full-time Employee in the competitive service who has had any disciplinary action, dismissal or reduction in pay Shall be entitled to request a Written statement of the reasons for such action. Such a request Must be made within three Working Days Following the action, and he Shall have three additional Days within which to answer the charges in writing. In the event the Employee requests the statement and prepares his Written answer, copies of both Shall be filed with the City Manager, who Shall transmit them to the Civil Service Board. Within ten Days from the date of filing his answer to the Written charges, or in the event such Written charges have not been made available to him within the time prescribed, then within ten Days after the action taken to demote, dismiss, or reduce the pay of the Employee, he May file a Written demand with the City Manager requesting a hearing before the Civil Service Board. The civil service board Shall then investigate the case (by means of reports/testimony/merits of the case) and conduct a hearing as provided in this chapter and by the rules. “B. The provisions of this section Shall not apply to reductions in pay which are a Part of a General Plan to reduce salaries and wages. [¶] (Ord. 0-03-00 § 8, 2000.)”
12 officers. However, the Personnel Rules, which appear to have been adopted by the city
on March 7, 2000, contain the identical language with respect to probation and, like
former section 2.48.080 of the Colton Municipal Code, do not refer to “lateral officers.”
(Personnel Rules, rule IX, § 1.)
Guerrero relies on a Colton Police Department Policy and Procedures Manual
dated 2006, which provides that while entry level sworn employees are on probation for
18 months, lateral officers are on probation for 12 months. However, the current chief of
police for the city stated in a declaration that since he was hired by the city in 1987, the
Colton Police Department had at all times maintained an 18-month probationary period
for all police officer hires. He stated that his predecessor as police chief had attempted to
implement the 2006 procedure manual, but that it was never adopted by the city. The
police chief’s declaration is substantial evidence—reasonable, credible and of solid value
(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651)—that supports the trial
court’s conclusion that Guerrero was subject to an 18-month probationary period.
Accordingly, we must affirm the trial court’s finding.
The City’s Purported Failure to Comply with Its Procedure in Extending
Guerrero’s Probation Did Not Result in His Attaining Permanent Status.
Guerrero contends that even if he was subject to an 18-month probationary period,
that period expired on October 9, 2008, and the city’s purported six-month extension was
invalid because the city failed to comply with its procedures for extending probation.
The city’s Personnel Rules provide: “Prior to expiration of an employee’s
probationary period, the employee’s supervisor, with the approval of his Department
13 Head, shall recommend to the Human Resource Director that one of the following actions
be taken: [¶] 1. Grant the employee permanent status[;] [¶] 2. Extend the probationary
period for a period not to exceed six months[;] [¶] 3. Terminate the employee because of
unsatisfactory performance. . . . [¶] Notification to the Human Resource Director of the
recommended action shall be accompanied by a performance evaluation report on the
employee, completed within the 30-day period immediately proceeding [sic] the date
when the employee’s probationary period is due to expire.” (Personnel Rules, rule IX,
§ 1.)
Here, defendant was notified by a letter, ostensibly from the chief of police but
signed by a Captain Ward, that his probation was being extended to April 16, 2009. The
letter stated that the department was exercising its option to do so because Guerrero had
been on administrative leave since May 15, 2008, pending the outcome of two internal
affairs investigations, and because Guerrero’s three-month absence made it difficult to
evaluate his performance.
Guerrero contends that in order to comply with this rule, Guerrero’s supervisor
“would have had to have notified the Human Resource Director between September 9,
2008 and October 9, 2008, of his decision to extend Guerrero’s probation and also have
submitted a performance evaluation along with that notification.” However, he states,
there is no evidence that this happened. “Moreover, and more importantly,” he states,
“there is no evidence that the Human Resource Director agreed with the recommendation
and actually extended the probation.”
14 For purposes of the motion to compel arbitration, it was Guerrero’s burden to
prove that he was entitled to arbitration. If, as he asserted, his right to arbitration hinged
on his status as a permanent employee, he also had the burden to prove that he was a
permanent employee. Guerrero has not cited any evidence produced in the trial court that
tends to prove that the police department and the city’s human resource director did not
comply with the city’s procedures to extend his probation. The record does include an
email from Lieutenant deDianous to the human resource director recommending that
Guerrero’s probation be extended by six months because of the pending internal affairs
investigation and because Guerrero had been on administrative leave for three months.
Guerrero asserts that it is “undisputed” that the human resource director did not extend
his probation. He appears to contend that the human resource director rather than the
police chief had the duty to notify him of the extension, but we see nothing in the rule
that requires this. We see no reason that the human resource director could not direct the
chief of police to notify Guerrero.
The sole irregularity appears to be the failure to provide a performance review to
the human resource director along with the recommendation that probation be extended.
Even if we assume that the information deDianous did provide—that Guerrero had been
on administrative leave for three months and that he was the subject of an internal affairs
investigation—does not suffice as a performance review, the city’s failure to adhere
strictly to the procedure for extending probation does not mean that Guerrero was a
permanent employee. The city’s Personnel Rules do not provide that upon expiration of
a probationary period, the employee automatically attains permanent status. As stated
15 above, the procedure provides that the employee’s supervisor shall recommend to the
human resource director one of three actions: “1. Grant the employee permanent status[;]
[¶] 2. Extend the probationary period for a period not to exceed six months[;] [¶]
3. Terminate the employee because of unsatisfactory performance. . . .” (Personnel
Rules, rule IX, § 1.) Accordingly, permanent status must be affirmatively granted; a
probationary employee does not attain permanent status by default in the absence of
action by the human resource director.
Guerrero relies on Zeron v. City of Los Angeles (1998) 67 Cal.App.4th 639 to
assert that in the absence of a valid extension of his probation, he did attain permanent
status upon the expiration of his probationary period. Zeron is distinguishable, however,
because under the charter of the City of Los Angeles, a probationary employee does
become permanent upon expiration of probation unless action is taken to dismiss him.
(Id. at p. 643.)
Guerrero Has Not Established That the City’s Personnel Rules Provide
Probationary Police Officers the Same Right to Arbitration As Permanent Officers.
Rule IX, section 3, of the Personnel Rules provides:
“REJECTION OF A PROBATIONER: During the probationary period, an
employee may be rejected by the Department Head without cause and without the right of
appeal or hearing. With regard to Public Safety Officers, there shall be no punitive action
16 undertaken without providing the officer with opportunity for administrative appeal.
(Government Code 3304, b.)”5
Guerrero contends that this rule means that as a probationary police officer, he was
entitled to the same type of grievance procedure afforded to permanent officers under the
MOU. We are not persuaded.
Guerrero’s contention calls upon us to interpret Personnel Rule IX, section 3.
Ordinances and regulations are legislative enactments of cities. (Cal. Const., art. 11, § 7.)
Ordinances and regulations, like statutes, must be interpreted in a manner which will
effectuate the intent of the enacting body. (Tower Lane Properties v. City of Los Angeles
(2014) 224 Cal.App.4th 262, 268.) This is a question of law, which a reviewing court
decides independently. (Ibid.) We begin by examining the words themselves, because
legislative language is generally the most reliable indicator of the underlying intent.
(People v. Toney (2004) 32 Cal.4th 228, 232.) If the language is unambiguous, we
presume that the enacting body meant what it said, and the plain meaning of the
legislation governs. (Ibid.) If the language does not clearly reflect the underlying
legislative intent, however, we apply the rules of statutory construction and/or turn to
5 Government Code section 3304, subdivision (b) (hereafter section 3304(b)) provides: “No punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” “Punitive action” means “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” (Gov. Code, § 3303, introductory paragraph.)
17 extrinsic sources to attempt to ascertain that intent. (Tower Lane Properties v. City of
Los Angeles, at pp. 268-269.)
We agree with Guerrero that the plain language of Personnel Rule IX, section 3
demonstrates that the city intended to differentiate between probationary employees in
general and probationary safety officers, and to confer on probationary safety officers the
right to some sort of administrative hearing before being dismissed. However, we do not
agree that merely by referencing Government Code section 3304(b), Personnel Rule IX,
section 3, unambiguously confers full hearing rights on probationary officers to the same
extent as permanent officers.
There is no statutory requirement for any particular procedure for administrative
appeals under section 3304(b). Rather, Government Code section 3304.5 provides, “An
administrative appeal instituted by a public safety officer under this chapter shall be
conducted in conformance with rules and procedures adopted by the local public
agency.” Here, neither the Personnel Rules nor the MOU describes the scope of the
administrative appeal to which probationary officers are entitled. When the scope of an
administrative appeal hearing is not prescribed by personnel rules, the MOU or other
established policy, the only requirement is that the administrative appeal hearing must
comport with due process. (James v. City of Coronado, supra, 106 Cal.App.4th at
pp. 909-910.) Due process is, of course, a flexible concept and means fundamentally
only a meaningful opportunity to be heard. (Id. at p. 910.) It does not require trial-like
hearings in all instances. The sufficiency of a proceeding for purposes of due process
“‘depends upon a complexity of factors. The nature of the alleged right involved, the
18 nature of the proceeding, and the possible burden on that proceeding, are all
considerations which must be taken into account.’” (Oberholtzer v. Commission on
Judicial Performance (1999) 20 Cal.4th 371, 391, fn. 16.)
Ordinarily, probationary employees have no vested property interest in their
continued employment and may be dismissed without cause and without a hearing.
(Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, 345.) A
probationary police officer who is dismissed for misconduct which might impair his
reputation or standing in the community, or which might seriously impair his ability to
earn a living, is entitled, as a matter of due process, to a hearing to attempt to refute the
charges and clear his name (id. at p. 346), but unlike a tenured police officer, is not
entitled by section 3304(b) to a hearing at which the public agency bears the burden of
proving grounds for termination or at which trial-type procedures apply. (See, e.g.,
Riveros v. City of Los Angeles (1996) 41 Cal.App.4th 1342, 1359-1361; James v. City of
Coronado, supra, 106 Cal.App.4th at pp. 910-912.)
A city may, of course, choose to extend the provisions of POBRA to probationers
as well. (Guinn v. County of San Bernardino (2010) 184 Cal.App.4th 941, 950 [Fourth
Dist., Div. Two].) In doing so, a city may choose to confer on probationary officers the
same due process rights afforded to permanent officers, or it may provide a more limited
hearing right to probationers, as long as due process is satisfied. (James v. City of
Coronado, supra, 106 Cal.App.4th at pp. 909-910.) Accordingly, we are not persuaded
that merely by stating that a probationary officer is to be afforded the opportunity for an
administrative appeal before the city may impose any punitive action, the city necessarily
19 intended to elevate due process for probationary officers to the level afforded to
permanent officers.
When legislative language is ambiguous, a court which is called upon to construe
the legislation applies well-settled rules of statutory construction or may turn to extrinsic
sources for evidence of the intent underlying the legislation. (Tower Lane Properties v.
City of Los Angeles, supra, 224 Cal.App.4th at pp. 268-269.) Even though this is a
question of law subject to de novo review, however, we are not required to reach a
conclusion as to the intent underlying legislation unaided by the appellant. An appellant
bears the burden of demonstrating reversible error. (State Farm Fire & Casualty Co. v.
Pietak (2001) 90 Cal.App.4th 600, 610.) To meet that burden, an appellant must provide
adequate briefing, containing argument, analysis and citations to pertinent authority.
“‘Where a point is merely asserted by counsel without any argument of or authority for
its proposition, it is deemed to be without foundation and requires no discussion.’
[Citations.]” (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1163.) This is true
even if the standard of review is de novo. (Reyes v. Kosha (1998) 65 Cal.App.4th 451,
466, fn. 6.) Here, because Guerrero merely asserts that Personnel Rule IX, section 3,
confers a right to a full evidentiary hearing on probationary officers without engaging in
any analysis, we decline to address the matter further.
20 Substantial Evidence Supports the Trial Court’s Implied Finding That Equitable
Estoppel Does Not Apply.
Guerrero contends that the city should be equitably estopped from denying his
right to proceed with arbitration because (1) everyone assumed he was a permanent
employee; (2) the city manager expressly agreed that Guerrero was entitled to arbitration;
(3) the chief of police offered Guerrero the option of resigning or appealing his
termination; and (4) Guerrero relied on the city’s conduct to assume that he was a
permanent employee and decided to appeal his termination rather than resign. If he had
believed that he was not entitled to appeal his termination as a permanent employee, he
states, he would have resigned.
Equitable estoppel is codified in Evidence Code section 623: “Whenever a party
has, by his own statement or conduct, intentionally and deliberately led another to believe
a particular thing true and to act upon such belief, he is not, in any litigation arising out of
such statement or conduct, permitted to contradict it.” In order to prevail, Guerrero
would have had to show that even though the city knew Guerrero was a probationary
employee, it deliberately misled him to believe that he was a permanent employee in
order to induce him to agree to arbitration rather than to resign. There is no such
evidence, and Guerrero does not even claim that there is. On the contrary, the record
shows that, as Guerrero asserts, “everyone” assumed he had attained permanent status. It
was only after the city determined that he was still on probation that it withdrew from the
arbitration. Accordingly, his contention fails.
21 DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to the City of Colton.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
HOLLENHORST Acting P. J.
RICHLI J.