Filed 3/25/14 Johnson v. Co. of San Diego CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



DARNELL JOHNSON,                                                    D063706

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2012-00099392-
                                                                    CU-WT-CTL)
COUNTY OF SAN DIEGO,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Randa

Trapp, Judge. Affirmed.

         Darnell Johnson, in pro. per., for Plaintiff and Appellant.

         Thomas E. Montgomery, County Counsel, and William H. Songer, Senior Deputy

County Counsel, for Defendant and Respondent.



                                                 INTRODUCTION

         Darnell Johnson, an employee of the County of San Diego (the County), was

offered the option to resign or be terminated from his position as a building maintenance
engineer after he was convicted of a felony for possession of stolen property and

unlawful possession of firearms. He resigned. Johnson appeals a judgment after the

court sustained without leave to amend the County's demurrer to Johnson's second

amended complaint (SAC) for a writ of mandate in which Johnson asked the court to

direct the County to provide him with "an administrative hearing process." The court

ruled the County of San Diego Civil Service Rules (Civil Service Rules)1 do not provide

an administrative appeal for an employee who resigns. We affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND2

                                             A

       Johnson began working for the County in 2000 as a construction and service

worker and was later promoted to the position of building maintenance engineer in 2005.




1      Further rule references are to the Civil Service Rules.

2       In reviewing an order sustaining a demurrer, "[w]e treat the demurrer as admitting
all material facts properly pleaded, but not contentions, deductions or conclusions of fact
or law. [Citation.] We also consider matters which may be judicially noticed." (Serrano
v. Priest (1971) 5 Cal.3d 584, 591.) The trial court granted the County's unopposed
request for judicial notice of (1) an excerpt from the Charter of the County of San Diego
(Charter), (2) an excerpt from the Civil Service Rules, (3) a letter dated August 23, 2011
from Johnson's union to the County of San Diego Civil Service Commission
(Commission) and (4) a letter dated September 22, 2011 from Johnson's union to the
Commission. Since Johnson did not oppose the request for judicial notice below and on
appeal does not take issue with the propriety of the court's order granting judicial notice
of the letters, we consider them pursuant to Evidence Code sections 452, subdivision (h)
and 459, subdivision (a). (See Scott v. JPMorgan Chase Bank (2013) 214 Cal.App.4th
743, 753 [judicial notice of agreement is proper where plaintiff did not question
authenticity].) Accordingly, we derive the facts from the operative complaint and the
judicially noticed material.

                                             2
       Johnson pleaded no contest in 2003 to a charge of assault with a deadly weapon

and was convicted of a felony, which was later reduced to a misdemeanor for probation

compliance. He was arrested in a County building and he disclosed the conviction to his

supervisor. The County took no disciplinary action against him at that time.

       In May 2011, Johnson pleaded guilty to felony charges of possession of stolen

property and unlawful possession of firearms, which included two pistols and a .22-

caliber rifle.

       After disclosing the new criminal conviction to his employer, Johnson alleges his

supervisor "threatened" him to sign a written resignation. He was told, "his only options

were to sign the resignation or suffer immediate termination." He also alleges his

supervisor said if he did not sign the written resignation, the supervisor would "see to it"

Johnson "never obtain[ed] another job again anywhere." Johnson signed the resignation,

but alleges he did so "under duress."

       A few days later, Johnson submitted a written request to rescind his resignation.

He also filed grievance papers with his union.

       The union sent a letter on Johnson's behalf to the Commission requesting an

investigation, under the Civil Service Rules, of due process violations surrounding the

issuance and signing of the letter of resignation. He requested an investigation and

reinstatement to his position. He also asserted, "any actions against him should be

conducted in accordance with due process rules . . . ."

       A month later, however, the union sent a second letter withdrawing the request,

stating Johnson did not wish to pursue the case. Johnson alleges "[i]n spite of the efforts

                                              3
of the [Service Employees International Union]," the County did not approve rescission

of his resignation.

                                              B

       Nine months after withdrawing the request for investigation, Johnson sued the

County asserting in his original complaint causes of action for wrongful termination,

fraud and coercion. He then filed a first amended complaint (FAC) alleging causes of

action for injunctive relief to rescind the "false contract for resignation," unpaid wages,

fraudulent conveyance, extortion of signature and writ of mandate under Code of Civil

Procedure section 1085 asking the court to compel the County to provide "an

administrative hearing process."

       The County demurred to all causes of action in the FAC. The County argued the

cause of action for writ of mandate was uncertain and failed to sufficiently state a cause

of action for writ relief, but leave to amend this cause of action should be granted. The

County argued the FAC did not plead the County denied Johnson's request for a service it

had a legal duty to provide. It suggested Johnson might argue the County had a

ministerial duty to rescind his resignation upon his request and the failure to do so was

arbitrary, capricious or entirely lacking in evidentiary support. It also speculated that

Johnson could argue the County had a ministerial duty to grant him a hearing afforded by

rule VII and that the failure to do so was arbitrary, capricious or entirely lacking in




                                              4
evidentiary support. The County argued it was extremely unlikely that Johnson could

plead a viable writ petition, but stated he should be granted leave to amend.3

       In opposition, Johnson argued he was entitled to a hearing and that one was not

provided. He further argued it is not his "obligation to write a hearing process for [the

County]."

       The court sustained the County's demurrer to the FAC as to all causes of action,

but granted leave to amend for the writ of mandate. The order stated the cause of action

for writ of mandate failed because Johnson had not alleged facts showing "(1) a clear,

present duty upon the part of the respondent and (2) a clear, present, and beneficial right

in the petitioner to the performance of that duty."

       Johnson's SAC asserted a sole cause of action for writ of mandate with factual

allegations identical to those alleged in the prior complaints. The County again demurred

arguing Johnson cannot state a claim for a traditional writ of mandate under Code of

Civil Procedure section 1085 because the County has no duty to offer an administrative

hearing to an employee who resigns. The County argued the Civil Service Rules only

provide a right for an employee who has been "reduced in compensation, suspended,

demoted or removed" to appeal to the Commission.




3       On appeal, Johnson challenges only the denial of his writ of mandate seeking an
administrative hearing. Therefore, we limit our discussion of the procedural background
to that issue.
                                              5
       After hearing oral argument, the court sustained the demurrer without leave to

amend, finding the Civil Service Rules do not provide an appeal right for an employee

who has resigned.

                                       DISCUSSION

                                              I

                                    Standard of Review

       On appeal from a judgment after a demurrer is sustained without leave to amend,

we review the order de novo and exercise our independent judgment on whether the

complaint states a cause of action as a matter of law. (Lincoln Property Co., N.C., Inc. v.

Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 911.) We assume the truth of all

properly pleaded facts, as well as facts inferred from the pleadings and those of which

judicial notice may be taken. (Howard Jarvis Taxpayers Assn. v. City of La Habra

(2001) 25 Cal.4th 809, 814.) Further, "we give the complaint a reasonable interpretation,

reading it in context." (Campbell v. Regents of University of California (2005) 35 Cal.4th

311, 320.) " ' "[W]e may affirm a trial court judgment on any basis presented by the

record whether or not relied upon by the trial court." ' " (Maystruk v. Infinity Ins. Co.

(2009) 175 Cal.App.4th 881, 887.)

       "If we see a reasonable possibility that the plaintiff could cure the defect by

amendment, then we conclude that the trial court abused its discretion in denying leave to

amend. If we determine otherwise, then we conclude it did not." (Campbell v. Regents

of University of California, supra, 35 Cal.4th at p. 320.) " 'The burden of proving such



                                              6
reasonable possibility is squarely on the plaintiff.' " (Maxton v. Western States Metals

(2012) 203 Cal.App.4th 81, 95.)

       We review due process challenges to procedural matters de novo because they

present pure questions of law. (Brown v. City of Los Angeles (2002) 102 Cal.App.4th

155, 168.) Since the same rules of construction and interpretation that apply to statutes

govern the construction and interpretation of rules and regulations of administrative

agencies, we apply a de novo standard of review for interpretation of civil service rules.

(Head v. Civil Service Com. (1996) 50 Cal.App.4th 240, 243-244.)

                                              II

                                              A

                             Requirements for Writ of Mandate

       "A court may issue a writ of mandate to compel a public agency or officer to

perform a mandatory duty. (Code Civ. Proc., § 1085; City of Dinuba v. County of Tulare

(2007) 41 Cal.4th 859, 868.) A writ of mandate is available only if the respondent has a

clear, present, and usually ministerial duty and the petitioner has a clear, present, and

beneficial interest in the performance of that duty." (City of Fillmore v. Board of

Equalization (2011) 194 Cal.App.4th 716, 734.)

       A ministerial duty is an act that must be performed in a prescribed manner

according to the mandate of legal authority without the exercise of discretion or

judgment. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29

Cal.4th 911, 916.) "While mandamus will not lie to control an exercise of discretion, i.e.

to compel an official to exercise discretion in a particular manner, mandamus may issue

                                              7
to compel an official both to exercise his or her discretion (if he or she is required by law

to do so) and to exercise it under a proper interpretation of the applicable law."

(California Assn. for Health Services at Home v. State Dept. of Health Care Services

(2012) 204 Cal.App.4th 676, 683.)

                                              B

                        Johnson is Not Entitled to Writ of Mandate

       Johnson argues the court erred in denying his request for a writ of mandate

because he resigned. He asserts there "must be a process by which an employee may

challenge the signature on a resignation, whether as a forgery, or as the product of

wrongful or illegal duress." To evaluate Johnson's claim, we review the Charter and the

Civil Service Rules.

       Employment with the County of San Diego exists solely by virtue of a personnel

system created by the Charter. (Charter, art. IX, § 900.)4 Although the personnel

director administers the personnel system, the Commission shares broad plenary

responsibility for protecting the merit basis of that system. (§ 904.)

       County employment is divided into classified and unclassified services. (§ 908.)

The Commission is responsible for all aspects of County employment in the classified

service, including review and modification of civil service rules. (§§ 904.3, 910, 910.1.)

       The Commission's investigative power extends to "the conduct and operations of

all departments," and in this regard, "the Commission may make any necessary orders,


4      All further section references are to the article IX of the Charter unless otherwise
indicated.
                                              8
including, but not limited to, back pay and classification adjustments, to carry out the

provisions of the Charter and the Civil Service Rules." (§§ 907, 907.1.) It also serves as

the "administrative appeals body for the County in personnel matters authorized by the

[Charter]." (Rule I, § 1.1.1(b).)

       The Civil Service Rules provide an appeal and a hearing process for classified

employees who are "reduced in compensation, suspended, demoted or removed."

(Rule VII, §§ 7.4, 7.6.) Removal is defined as the "involuntary termination of an

employee from a position and from the classified service in accordance with Rule VII."

(Rule XVII, § 17.1.1.)

       If an employee wishes to resign in good standing, the rules require the employee

to file a written resignation. An employee may rescind a written resignation by

submitting a request to rescind in writing prior to the last day of employment, which the

director may grant or deny after investigation. (Rule XIV, § 14.2.1.) Resignation is

defined as "[v]oluntary separation of an employee from County Service." (Rule XVII,

§ 17.1.1.)

       Section 901 of the Charter requires the County to "hire, transfer, promote,

discipline or dismiss individuals on the basis of job related qualification, merit and equal

opportunity without regard to age, color, creed, disability, national origin, political

affiliation, race, religion, sex, sexual orientation or any other non-job related factor,

including but not limited to retaliation based on protected activity." (Rule VI, § 6.1.1.)

An employee who claims he or she has been subjected to discrimination or other

mistreatment may file a complaint within 60 days of the alleged improper practice.

                                               9
(Rule VI, § 6.1.2.) Thereafter, the Office of Internal Affairs (OIA) must investigate and,

if it finds probable cause for violation of the Charter, and the remedy requested is not

within the jurisdiction of the OIA or the Chief Administrative Office, the Commission

must conduct a hearing in accordance with prescribed rules and render a decision.

(Rule VI, §§ 6.1.3-6.1.13.)

       In addition to these provisions, the rules provide that the Commission "may in its

discretion upon the request of any individual or on its own initiative, investigate, either as

a group or as individuals, the conduct and operations of any department." (Rule XI,

§ 11.1.) The Commission is granted authority to administer oaths, subpoena witnesses

and materials and to made findings and a proposed decision, which include any necessary

orders. (Rule XI, §§ 11.1-11.5.)

       After consideration of the Civil Service Rules as a whole, we conclude the court

did not err in determining the Civil Service Rules do not require the County to provide a

hearing to an employee who resigned.

       Johnson received a felony conviction for possession of stolen property and

unlawful possession of firearms. Johnson admits the County may remove an employee

for theft. According to the rules, Johnson's conviction provided sufficient cause for

discipline, including removal. (See rule VII, § 7.2, subd. (d) [employee guilty of

dishonesty], subd. (k) [employee convicted of a criminal offense involving moral

turpitude], subd. (r) [employee guilty of a failure of good behavior], & subd. (s)

[employee guilty of any act incompatible with or inimical to public service].)



                                             10
       After learning about the conviction, the County offered Johnson the option to

resign or to be removed. If Johnson had chosen removal, the Civil Service Rules would

have provided him with the attendant administrative processes, including the right to a

hearing and judicial review pursuant to Code of Civil Procedure section 1094.5. (Rule

VII, §§ 7.2.1-7.13.) He did not choose this option. Instead, he resigned. As pointed out

by the County, employees often choose to resign to avoid the stigma attached to being

fired. This is a reasonable choice.

       Assuming, as we must, that Johnson's resignation was obtained under undue

pressure, Johnson had alternative remedies as provided by the Civil Service Rules. While

the rules do not provide a mandatory administrative hearing process to challenge a

resignation, they allow an employee who resigns to submit a request to rescind a written

resignation. (Rule XIV, § 14.2.1.) Johnson submitted a request for rescission, but it was

not accepted. The County is not required to accept the request to rescind and the rules do

not require a hearing regarding rescission of a resignation.

       Another option available to employees who feel they have been improperly

disciplined or retaliated against is to file a complaint and request an investigation under

either rule VI or rule XI. Johnson initiated a complaint and requested an investigation

under rule XI regarding the circumstances surrounding his resignation. He asserted the

County circumvented the process of instituting discipline under the rules and violated the

County's own policies. However, Johnson then withdrew his complaint. An employee

who does not avail himself of established remedies does not establish a violation of due

process. (See Wilson v. State Bar of California (1958) 50 Cal.2d 509, 510 [petitioner

                                             11
does not establish a violation of due process when he declined to avail himself of the

opportunity to be heard and to present evidence]; Garamendi v. Golden Eagle Ins. Co.

(2004) 116 Cal.App.4th 694, 706, fn. 4 ["Due process demands only that litigants have

the opportunity to be heard, not that they avail themselves of that opportunity"].)

       Under the circumstances, we cannot conclude the County failed to perform a

ministerial duty it was required by law to perform. Johnson failed to allege a clear,

present, and ministerial duty on the part of the County to provide him with a hearing to

challenge his resignation. Nor has Johnson alleged he has a clear, present, and beneficial

interest in the performance of any such duty. (Excelsior College v. Board of Registered

Nursing (2006) 136 Cal.App.4th 1218, 1237-1238.)

       Further, Johnson's opening brief does not show a reasonable possibility he could

amend his complaint to allege facts entitling him to a writ of mandate. On appeal, a

plaintiff must show in what manner the complaint can be amended and how the

amendment will change the legal effect of the pleading. " 'The assertion of an abstract

right to amend does not satisfy this burden.' [Citation.] The plaintiff must clearly and

specifically state 'the legal basis for amendment, i.e., the elements of the cause of action,'

as well as the 'factual allegations that sufficiently state all required elements of that cause

of action.' " (Maxton, supra, 203 Cal.App.4th at p. 95.) No such showing is made here.




                                              12
                                 DISPOSITION

     The judgment is affirmed. Respondent is awarded costs on appeal.




                                                                MCCONNELL, P. J.

WE CONCUR:


NARES, J.


AARON, J.




                                        13
