Filed 7/1/14 Keylon v. City of Dos Palos CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

STACY KEYLON,
                                                                                           F067573
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CV002744)
                   v.

CITY OF DOS PALOS,                                                                       OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Merced County. Donald J.
Proietti, Judge.
         Liebert Cassidy Whitmore, Jesse J. Maddox and Michael D. Youril for Defendant
and Appellant.
         Law Offices of Thomas Perez and Thomas Perez for Plaintiff and Respondent.
                                                        -ooOoo-
         This appeal arises out of writ a proceeding concerning appellant City of Dos
Palos’ (City) decision to terminate the employment of respondent Stacy Keylon.
       Before her termination, Keylon participated in a pre-termination hearing.
However, because Keylon was denied the opportunity to provide mitigating facts, this
hearing did not comply with the due process requirements set forth in Skelly v. State
Personnel Bd. (1975) 15 Cal.3d 194, 215 (Skelly).1 Thereafter, Keylon met with the city
manager, who upheld her termination. Keylon then participated in an arbitration hearing.
The arbitrator also upheld the termination. Keylon was awarded back pay from the date
of her termination until her appeal to the city manager when, in the arbitrator’s opinion,
an effective Skelly hearing was held. This was a period of approximately one month.
       Keylon filed the underlying petition for writ of administrative mandamus
challenging the arbitrator’s decision under Code of Civil Procedure2 section 1094.5. The
City demurred on the ground that section 1285 et seq., applies to binding arbitration, not
section 1094.5. The trial court overruled the City’s demurrer.
       In ruling on the petition, the trial court upheld Keylon’s termination. However,
the trial court awarded Keylon back pay from the termination date to the date the City
“adopted” the arbitrator’s decision, a period of approximately one year.
       The City argues the trial court erred in overruling its demurrer because binding
arbitration is subject to review under the standard set forth in section 1286.2. This
section severely restricts the circumstances under which an award can be vacated. The
City alternatively asserts that the trial court erred in increasing Keylon’s back pay award
because the hearing before the city manager satisfied the Skelly requirements.

1      Skelly requires that, before taking punitive action against a civil service employee,
the public agency must accord the employee certain procedural rights. “As a minimum,
these preremoval safeguards must include notice of the proposed action, the reasons
therefor, a copy of the charges and materials upon which the action is based, and the right
to respond, either orally or in writing, to the authority initially imposing discipline.”
(Skelly, supra, 15 Cal.3d at p. 215.)
2      All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.



                                             2.
       The trial court used the incorrect standard when it reviewed the arbitration award.
Keylon is bound by the arbitrator’s decision. Accordingly, the judgment will be reversed.
                                     BACKGROUND
       The City employed Keylon as a public safety dispatcher. The City is a public
agency and thus Keylon was a public employee. Keylon, as a permanent public
employee, had a property interest in the continuation of her employment that was
protected by due process. (Skelly, supra, 15 Cal.3d at p. 206.) It is undisputed that
Keylon could only be discharged for cause and was entitled to due process in connection
with her discharge.
       Following an administrative investigation, Police Chief Barry Mann served
Keylon with a notice of intent to discipline. This notice called for termination of
Keylon’s employment for conduct related to bringing a loaded handgun to work.
       At Keylon’s request, a pre-termination Skelly hearing was held on April 28, 2011.
Mann served as the hearing officer. Keylon responded to the charges but was not
permitted to explain that she brought the gun to work because she feared her husband.
Mann decided to uphold the termination decision effective April 28 and advised Keylon
in writing that she had a right to an evidentiary hearing before the city manager.
       Keylon appealed Mann’s decision to the city manager, Darrell Fonseca. Keylon
acknowledged that, at the hearing held on May 23, 2011, she had a fair opportunity to
present her position to Fonseca. On June 10, 2011, Fonseca upheld the decision to
terminate Keylon’s employment.
       Thereafter, as authorized by the City’s personnel rules, Keylon requested
arbitration. The parties mutually selected an arbitrator and a hearing was held on
January 30, 2012.
       Keylon was represented by counsel at the arbitration hearing. The parties agreed
that the matter was properly before the arbitrator. When the arbitrator asked about the
effect of his decision, counsel for the City advised that, under the personnel rules, his

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arbitration decision was final. Keylon’s attorney agreed to the arbitration decision being
final.
         The arbitrator issued his decision on April 6, 2012. The arbitrator upheld the
termination. However, the arbitrator also found that Keylon was denied an effective
Skelly hearing. The arbitrator concluded that Keylon should have been permitted to
attempt to justify carrying a concealed weapon to work by explaining “the reasons she
feared bodily harm from her husband.” Accordingly, the arbitrator found Keylon was
entitled to back pay. But, because the City allowed Keylon to appeal her case to the city
manager about a month after the Skelly hearing, the arbitrator limited the City’s pecuniary
liability to that one month. The arbitrator determined that the hearing before the city
manager cured the Skelly violation.
         On June 21, 2012, Keylon filed the underlying petition for writ of administrative
mandate challenging the arbitrator’s decision under section 1094.5. Keylon alleged the
decision was not supported by the evidence.
         The City demurred to the petition arguing that the arbitration was final and
binding and could not be challenged under section 1094.5. According to the City, to
challenge the arbitration award, Keylon was required to show that the arbitrator
committed fraud, was corrupt or engaged in other misconduct as set forth in section
1286.2. Therefore, Keylon failed to state a claim.
         The trial court overruled the City’s demurrer. The court concluded that Keylon
was not bound by the City’s personnel rules requiring final and binding arbitration of her
claims absent a written agreement. The court further found the fact that Keylon
arbitrated the issue could not be construed as an implied agreement to make the
arbitration binding. Rather, Keylon was forced through the process.
         In February 2013, the trial court issued an order on Keylon’s petition. Exercising
its independent judgment on review of the administrative record, the court upheld
Keylon’s termination. However, the court granted Keylon’s petition on the claim that the

                                              4.
Skelly violation award was miscalculated. The court found that the arbitrator erred in
limiting the award to approximately one month and instead awarded Keylon back pay
“for the period from the date of termination until the date the arbitrator’s decision was
adopted by [the City],” i.e., from April 28, 2011 to April 9, 2012.
                                        DISCUSSION
          The City argues the trial court erred in overruling its demurrer and reviewing the
arbitrator’s decision under section 1094.5. The City contends the arbitration was binding
on Keylon and therefore the decision should have been reviewed under section 1285 et
seq. Alternatively, the City argues its back pay obligation ended when the city manager
issued his June 10, 2011 decision. According to the City, at that point the Skelly due
process violation was corrected because Keylon had been given an opportunity to
respond to the City, the authority that initially imposed the discipline. (Barber v. State
Personnel Bd. (1976) 18 Cal.3d 395, 403.)
          As noted above, the trial court concluded that Keylon was not bound by the
personnel rules requiring final and binding arbitration because she did not agree to be
bound by these rules in a written agreement.
          Arbitration is a matter of contract. Accordingly, a party who has not agreed to
arbitrate a controversy cannot be compelled to do so. (Avery v. Integrated Healthcare
Holdings, Inc. (2013) 218 Cal.App.4th 50, 59.) Further, the party seeking to compel
arbitration has the burden of proving the existence of a valid agreement to arbitrate.
(Ibid.)
          The City argues that Keylon became subject to the City’s personnel rules when
she accepted employment with the City, a public agency, and thus was subject to binding
arbitration. According to the City, the trial court’s reliance on Sparks v. Vista Del Mar
Child & Family Services (2012) 207 Cal.App.4th 1511 was misplaced because that case
addressed a private employer’s motion to compel arbitration. In Sparks, the court held



                                               5.
that an arbitration clause in an employee handbook that was “distributed” to all
employees did not create an enforceable agreement to arbitrate. (Id. at pp. 1522-1523.)
       However, this court need not decide whether the City could have compelled
Keylon to submit the dispute to binding arbitration based on its personnel rules. The
question is whether Keylon waived this issue.
       As outlined above, Keylon requested arbitration and the parties selected an
arbitrator as set forth in the City’s personnel rules. At the beginning of the arbitration
hearing, Keylon, through her attorney, agreed that the matter was properly before the
arbitrator and that the arbitrator’s decision would be final. Keylon did not object to the
binding nature of the arbitration at that time.
       “[A] party may not agree to arbitrate a matter, participate in the arbitration and
then attempt to avoid its binding nature when the result is unfavorable.” (NORCAL
Mutual Ins. Co. v. Newton (2000) 84 Cal.App.4th 64, 80.) In other words, a party is not
permitted to sit on her rights, content in the knowledge that should she suffer an adverse
decision, she could then attempt to vacate the arbitrator’s award. (Moncharsh v. Heily &
Blase (1992) 3 Cal.4th 1, 30 (Moncharsh).) “A contrary rule would condone a level of
‘procedural gamesmanship’ that we have condemned as ‘undermining the advantages of
arbitration.’” (Ibid.)
       Accordingly here, when Keylon agreed to, and knowingly participated in, the
arbitration without objecting to the finality of the arbitrator’s decision, she waived any
claim regarding the validity of the arbitration provision or its binding nature. Therefore,
the arbitrator’s decision was binding and final.
         Being binding and final, the merits of the arbitrator’s decision were not subject
to judicial review. (Moncharsh, supra, 3 Cal.4th at p. 11.) With narrow exceptions, an
arbitrator’s decision cannot be reviewed for errors of fact or law. (Ibid.) Courts will
neither review the validity of the arbitrator’s decision nor the sufficiency of the evidence
supporting the arbitrator’s award. (Ibid.)

                                              6.
       The exclusive grounds for judicial review of arbitration awards are those found in
section 1285 et seq., the statutes governing arbitration. (Pour Le Bebe, Inc. v. Guess?
Inc. (2003) 112 Cal.App.4th 810, 825.) The circumstances under which a court is to
vacate an arbitration award include that “[t]he award was procured by corruption, fraud
or other undue means”; there was corruption in the arbitrators; the rights of the party
were substantially prejudiced by misconduct of the arbitrators; or the arbitrators exceeded
their powers. (§ 1286.2, subd. (a).)
       Keylon’s petition did not allege any grounds set forth in section 1286.2 for review
of the arbitrator’s award. Rather, Keylon sought review under section 1094.5. She
alleged that the arbitrator’s decision was not supported by the evidence and that her back
pay was not correctly calculated. Since Keylon failed to set forth any valid grounds for
review of the arbitrator’s decision, the trial court erred in overruling the City’s demurrer.
Keylon is bound by the arbitrator’s decision, including the award of back pay.
                                       DISPOSITION
       The judgment is reversed. The City is awarded its costs on appeal.


                                                                  _____________________
                                                                        LEVY, Acting P.J.
WE CONCUR:


 _____________________
POOCHIGIAN, J.


 _____________________
PEÑA, J.




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