Filed 1/28/16

                            CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



ROBERT HUGHES,

        Plaintiff and Appellant,                       E060294

v.                                                     (Super.Ct.No. CIVDS1301580)

COUNTY OF SAN BERNARDINO,                              OPINION

        Defendant and Respondent.




        APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.

Reversed with directions.

        Law Office of Michael A. Morguess and Michael A. Morguess for Plaintiff and

Appellant.

        Gutierrez, Preciado & House and Calvin House for Defendant and Respondent.

        Plaintiff and appellant Robert Hughes, a retired sheriff’s deputy, challenges the

judgment of dismissal after the trial court sustained without leave to amend the demurrer

to his amended petition for writ of mandate and administrative mandate. The demurrer

was filed by defendant and respondent County of San Bernardino (the County). Hughes



                                              1
sought to compel the County to complete the administrative appeal process from a

disciplinary action. Hughes initiated the administrative appeal under the County’s civil

service rules, but missed the scheduled hearing after suffering a heart attack. Hughes

retired for medical reasons before the hearing could be rescheduled. The County

declined to reschedule after Hughes retired, arguing he was no longer an employee

entitled to an administrative appeal. Defendant San Bernardino Civil Service

Commission (the CSC), after requesting briefing from Hughes and the County, ruled that

it had no jurisdiction to continue with the appeal. We reverse the order dismissing the

amended petition and remand to the trial court with directions to enter a new order

overruling the County’s demurrer.

                               I. FACTS AND PROCEDURE

       According to the verified petition, Hughes was a sheriff’s deputy for the County

for more than 30 years. In September 2009, Hughes was served with allegations of

misconduct, which resulted in a 15-day suspension and the loss of about $7,000 in wages.

       Hughes filed an administrative appeal with the CSC. In September 2011, Hughes

suffered a heart attack and was put on medical leave. Also in September 2011, Hughes’s

counsel appeared at the hearing on his administrative appeal before the hearing officer.

Hughes was unable to appear because he was in the hospital.

       Hughes’s counsel entered into a tentative oral settlement agreement with the

County without authorization from Hughes. The hearing officer had the tentative




                                            2
agreement placed on the record with directions to the County to prepare a written

settlement agreement. The County did not prepare a written agreement.

       In March 2012, Hughes obtained new counsel. Also in March 2012, Hughes’s

counsel asked the CSC to continue with the administrative appeal. The County objected,

arguing the matter had been settled pursuant to the tentative settlement agreement. The

CSC asked the parties to submit briefs on the issue.

       In March 2012, while this issue was pending before the CSC, Hughes retired from

the County because of a medical condition. He applied for conversion to an industrial

disability retirement.

       On June 13, 2012, the CSC denied Hughes’s request to continue with the

administrative appeal.

       After the CSC denial, Hughes asked the County to engage in an administrative

appeal pursuant to due process requirements and Government Code section 3304,

subdivision (b), which is part of the Public Safety Officers Procedural Bill of Rights Act

(POBRA). (Gov. Code, § 3300 et seq.)1 The County denied the request on the bases

Hughes had retired and that the parties had entered into a settlement agreement.

       On May 24, 2013, Hughes filed an amended petition for writ of administrative and

ordinary mandate under Code of Civil Procedure sections 1085 and 1094.5 and

Government Code section 3309.5, and a complaint for violations of the California Fair


       1 All further statutory references are to the Government Code unless otherwise
indicated.


                                             3
Employment and Housing Act (FEHA). The four causes of action were: (1) writ of

mandate requiring the CSC to provide Hughes with an administrative hearing; (2) writ of

administrative mandate requiring the CSC to provide Hughes with an administrative

hearing; (3) writ of mandate and/or affirmative injunctive relief under POBRA (Gov.

Code, § 3304, subd. (b));2 and (4) FEHA disability discrimination (Gov. Code, § 12940,

subd. (a)), prohibiting employment discrimination on the basis of a “medical condition.”

        On or about July 5, 2013, the County filed its demurrer. For the first two causes of

action, the County argued: (1) Hughes was afforded an opportunity for a hearing even

though the hearing never took place, and (2) the CSC lacked jurisdiction to hold the

requested administrative hearing after Hughes retired. For the third cause of action, the

County argued: (1) Hughes was afforded an opportunity for a hearing even though the

hearing never took place, and (2) Hughes lost his right to a hearing under section 3304

when he retired. For the fourth cause of action, the County argued: (1) Hughes was not

deprived of a term, condition or privilege of employment, and (2) the County cannot be

held liable for advocating its position before the CSC.

        Hughes filed his opposition on August 9, 2013.

        The County filed its reply to Hughes’s opposition to its demurrer on August 14,

2013.



        Section 3304, subdivision (b) states: “No punitive action . . . shall be
        2
undertaken by any public agency against any public safety officer who has successfully
completed the probationary period . . . without providing the public safety officer with an
opportunity for administrative appeal.”


                                             4
       The trial court held a hearing on the County’s demurrer on August 22, 2013, and

took the motion under submission. On September 13, 2013, the court sustained the

County’s demurrer on Hughes’s entire amended petition, without leave to amend. The

minute order states the court’s reasoning as follows: “The court finds that when the

anticipated settlement did not come to fruition, petitioner’s remedy was to request the

commission to reschedule the hearing, which he did, but then to postpone his retirement

until he had obtained a ruling by the commission on whether to reschedule the hearing. If

the commission declined to hold a hearing, the petitioner’s remedy would have been to

seek a writ of mandate to compel the commission to hold a hearing while petitioner was

still employed. The civil service commission lost jurisdiction upon petitioner’s

retirement. [Zuniga v. Los Angeles Civil Service Com. (2006) 137 Cal.App.4th 1255,

1258-1260; County of Los Angeles Dept. of Health Services v. Civil Service Com. of

County of Los Angeles (2009) 180 Cal.App.4th 391, 401 (DHS).] The County of San

Bernardino is not required to provide an alternative forum for a hearing in the absence of

jurisdiction by the commission.”

       The judgment of dismissal was filed on October 18, 2013. The notice of entry of

judgment was filed on December 17, 2013. Hughes filed his notice of appeal on the same

day.




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                                      II. DISCUSSION

A. Standard of Review

       The appellate court reviews de novo the trial court’s ruling sustaining a

defendant’s demurrer without leave to amend. (Schauer v. Mandarin Gems of Cal., Inc.

(2005) 125 Cal.App.4th 949, 955.) “The reviewing court gives the complaint a

reasonable interpretation, and treats the demurrer as admitting all material facts properly

pleaded. [Citations.] The court does not, however, assume the truth of contentions,

deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one

of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is

error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action

under any possible legal theory. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2

Cal.4th 962, 966-967.)

B. Hughes Was Not Afforded an Opportunity for a Hearing

       The common element of the County’s demurrer to the first three causes of action

is that “Hughes was afforded an opportunity for a hearing,” even though the hearing was

not actually held. As discussed below, this aspect of the County’s demurrer fails.

       The County based the assertion that Hughes was afforded an opportunity for a

hearing on its position that “the appeal had been settled in September 2011” and on case

law holding that a public entity may enforce procedural rules that result in an actual

hearing not being held without denying a plaintiff the opportunity to be heard. (Boddie v.

Connecticut (1971) 401 U.S. 371, 378 [“A State[] can, for example, enter a default



                                              6
judgment against a defendant who . . . without justifiable excuse, violates a procedural

rule requiring the production of evidence necessary for orderly adjudication . . . .”].)

However, the County does not point to any procedural rules it followed that resulted in

the hearing not being held. Rather, the County relies completely on the tentative

settlement agreement for its assertion that Hughes was given the opportunity for an

administrative hearing, which it argues was not held “through no fault of the County.”

This argument is completely undermined, however, when the County correctly concedes

in its responsive brief that the tentative agreement was not enforceable under the law.

Whether under Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404 (an attorney has

no implied or ostensible authority to settle a cause of action or impair the client’s

substantial rights without the client’s authorization) or because the County never reduced

the agreement to writing,3 Hughes did not agree to and did not receive consideration in

exchange for giving up his then undisputed right to an administrative hearing on the

discipline matter. For this reason, we conclude that Hughes was deprived of even the

opportunity for a hearing.




       3  The County does not dispute the following allegations in the amended verified
petition: “9. Without [Hughes’s] authority, his then counsel entered into a tentative
settlement agreement with the County employer, and the tentative agreement was placed
on the record with directions to the County employer to prepare a written settlement
agreement. [¶] 10. The purported agreement was never authorized by [Hughes], never
memorialized or otherwise reduced to writing as required and directed by the Hearing
Officer, and never signed by any of the parties including [Hughes]; thus there is no valid
and binding settlement agreement.”


                                              7
       Further, accepting the County’s argument on this point would violate basic rules

of fairness. The County would get what it bargained for in the failed settlement

agreement: the dismissal of the appeal. However, Hughes would get neither the benefit

of the settlement agreement nor a hearing. That’s not much of an “opportunity.”

C. The CSC Retained Jurisdiction to Hear Hughes’s Administrative Appeal After He

Retired Because the County of San Bernardino Personnel Rules (Personnel Rules) Did

Not Divest the CSC of Jurisdiction

       The trial court cites to two cases, Zuniga v Los Angeles County Civil Service

Com., supra, 137 Cal.App.4th 1255 and DHS, supra, 180 Cal.App.4th at page 401, as

dispositive that Hughes’s retirement divested the CSC of jurisdiction to consider his

administrative appeal. Both cases, which are also cited by the parties, interpret the Los

Angeles County civil service rules to allow the commission to hear administrative

appeals from former employees only in very narrow circumstances that were not present

in those cases or in this case.

       In Zuniga, the appellate court held that the trial court properly denied a deputy’s

petition for writ of mandate challenging the Los Angeles County Civil Service

Commission’s decision sustaining his 10-month suspension without pay. However, the

appellate court did not reach the merits of the suspension because it held that the

commission lost jurisdiction to adjudicate Zuniga’s administrative appeal when Zuniga

retired. The appellate court started by citing case law to the effect that a civil service

board has only the very limited powers granted to it, and no more. “‘A civil service



                                              8
commission created by charter has only the special and limited jurisdiction expressly

authorized by charter. [Citations.]’” (Zuniga v. Los Angeles County Civil Service Com.,

supra, 137 Cal.App.4th at p. 1259.) The court then reviewed the civil service rules and

determined that rule 4.01, which grants to any “‘employee or applicant for employment’”

the right to “‘petition for a hearing before the commission’” applies only to persons who

remain employees throughout the administrative process. (Id. at pp. 1259, 1261.) This is

because the rules define an “employee” as “‘any person holding a position in the

classified service of the county.’” (Id. at p. 1259.) The rules do make some exceptions

for persons no longer employed, such as those who have been wrongfully terminated,

and, as do the County’s civil service rules, those whose resignation was “‘obtained by

duress, fraud, or undue influence.’” (Id. at pp. 1259-1260.) The court used the existence

of exceptions to imply a rule that persons who do not fall within the exceptions must

remain actively employed for the entire pendency of an administrative appeal. For the

reasons discussed herein, we disagree with this reasoning.

       Relying extensively on Zuniga, the appellate court in DHS affirmed the trial

court’s ruling that the Los Angeles County Civil Service Commission lost jurisdiction

over the administrative appeal of a fired assistant nursing director when she voluntarily

retired while the appeal was pending. This decision relied on both Zuniga’s restrictive

view of the powers of an administrative agency and on the previously discussed language

of the Los Angeles County civil service rules.




                                             9
       However, in Hall-Villareal v. City of Fresno (2011) 196 Cal.App.4th 24, the Fifth

District Court of Appeal affirmed the trial court’s decision that a fired employee’s

application for retirement benefits did not divest that city’s civil service board of

jurisdiction to hear her pending appeal. The court based this, in part, on the particular

wording of Fresno’s charter and municipal code, which contained language different

from that in the Los Angeles County civil service rules. The court held that the city did

not demonstrate that its charter and municipal code required the same result as the Los

Angeles rules. (Id. at p. 33.)4 Most important for the purposes of this appeal, the court

also differed from the courts in Zuniga and DHS when it placed the burden on the city to

show that the civil service board lost jurisdiction of an existing appeal upon an

employee’s separation from employment, rather than placing the burden on the employee

to show that the civil service board retained jurisdiction. The Fresno rules include

language providing a procedure for retired employees to be reemployed by the city, and

thus the employee could return to work for the city if the civil service board were to

reverse the termination decision. The court consequently found that the employee’s

retirement did not divest the civil service board of jurisdiction to hear her appeal. (Hall-

Villareal v. City of Fresno, supra, at p. 33.) In further support of our holding in this case,

       4  The Hall-Villareal court also bases its decision, in part, on the fact that the
employee had already been separated from employment by the contested termination, and
that the subsequent retirement did not change this. The court, in fact, disagreed with the
DHS court’s reading of Zuniga as establishing a “bright-line rule” that a person who is
terminated and then retires thereby divests the civil service board of jurisdiction to hear
an appeal. This fact situation is not present here, where Hughes was merely suspended,
not terminated, before retiring during the pending administrative appeal.


                                              10
we note that rule VII, sections 10 and 11 of the Personnel Rules similarly provides a

procedure for employees who have resigned or retired to return to work.

       These opinions lead us to search the rules applicable to Hughes’s employment to

determine whether a County employee who pursues an administrative appeal of an

adverse personnel action is entitled to complete the appeal process if he resigns or retires

before the process is complete, or whether the CSC loses its prior jurisdiction when an

employee resigns or retires.

       Here, rule X, section 9 of the Personnel Rules, revised July 24, 2007, governs who

may appeal and what they may appeal. “A classified employee with regular status may

appeal an order of suspension, demotion, reduction in salary step, or dismissal to the

[CSC] and request a hearing. . . .”

       The jurisdiction of the CSC is described in the following relevant part of rule II,

section 16 of the Personnel Rules: “The Commission serves as a hearing body for

adjudicating employee appeals on matters as set forth in these Rules. The Commission

shall have jurisdiction only in regard to those matters that are specifically appealable to

the Commission under those sections of the Personnel Rules where the right of appeal is

expressly granted. The Personnel Rules shall not be grounds for a grievance, appeal or

complaint except as provided for in these Rules. . . .” (Italics added.) We note that this

section is restrictive regarding what kinds of matters can be appealed, but does not state

that the CSC loses jurisdiction of a properly initiated administrative appeal when an

employee resigns or retires.



                                             11
       We find no language in the Personnel Rules that directly or indirectly addresses

what happens when a classified regular employee, who has properly begun the

administrative appeals process with the CSC, later resigns or retires before the appeal is

completed. The County argues that the Personnel Rules’ language limiting the CSC’s

jurisdiction to “employee appeals” and authorizing only a “classified employee” to

appeal from a suspension means the employee must remain an employee during the

entirety of the appeal process. We have not found, nor have the parties pointed out, any

terms of the Personnel Rules that compel this reading, or address the issue at all.

       We agree with Hughes that the Personnel Rules’ use of the term “classified

employee with regular status” in rule X, section 9, merely distinguishes: (1) a classified

employee, who has CSC appeal rights, from an unclassified employee, who does not,5

and (2) an employee who has obtained “regular status” and has CSC appeal rights, from a

probationary employee, who does not.6 7 The Personnel Rules cited above clearly and

specifically grant or deny CSC appeal rights based only on (1) the subject matter of the


       5 “Persons in the Unclassified Service do not have Civil Service Commission
appeal rights as they serve at the pleasure of the appointing authority . . . .” (Personnel
Rules, rule III, section 2a.3.)

       6  “Disciplinary actions imposed during a probationary period are not subject to
review or appeal to the [CSC] unless the employee has attained regular status in a
previous classification since the employee’s most recent date of hire.” (Personnel Rules,
rule VII, section 8.)

       7 “Employees . . . who have not attained regular status since their most recent date
of hire may be dismissed, demoted, reduced in step, or suspended without right to review
or appeal to the [CSC].” (Personnel Rules, rule X, section 4a.)


                                             12
appeal and (2) an employee’s status as classified or unclassified, regular or probationary.

Nowhere do the Personnel Rules provide that regular classified employees who properly

initiate an appeal lose the ability to complete the appeal when they resign or retire, or that

the CSC thereby loses jurisdiction to complete the appeal.

       There is not an abundance of case law on this issue. In addition to Zuniga and

DHS on the one hand, and Hall-Villareal on the other, only Service Employees Internat.

Union, Local 1021 v. County of San Joaquin (2011) 202 Cal.App.4th 449 (SEIU) is cited

by both parties. SEIU held that an employee did not forfeit his right to compel arbitration

of an employee discipline under a memorandum of understanding (MOU) simply by

retiring. SEIU is helpful only inasmuch as it expressly points to the dichotomy of

viewpoint within the three cases discussed above. Zuniga and DHS “concluded that . . .

retirement was a voluntary resignation that automatically divested the civil service

commission of jurisdiction to decide the disciplinary action,” based at least, in part, on

the courts’ view that the Los Angeles County Civil Service Commission has only the

very special and limited jurisdiction that the county’s charter specifically granted it.

(SEIU, supra, at p. 461.) Conversely, the “Hall-Villareal court [in declining to apply the

holding in DHS] expressed doubt that there exists ‘a bright-line rule that, if a person

whose employment already has been terminated[8] seeks retirement benefits, the Civil

       8  We again recognize that the full reasoning of Hall-Villareal does not apply to
this case because that court relied for its result in part on the fact that the employee was
terminated and could return after retiring, whereas Hughes here is challenging an unpaid
suspension. Despite this difference, we find Hall-Villareal to be relevant and persuasive
because it takes a less restrictive view of the civil service board’s jurisdiction. Further,
                                                                   [footnote continued on next page]


                                              13
Service Commission thereby loses jurisdiction to hear [an] appeal of the termination

decision.’ [Citation.]” (Ibid.) The SEIU court commented that it need not decide which

case or cases reaches the better result because it decided the dispute in the employee’s

favor based on contract principals, since the dispute rested on the language of an MOU

rather than on civil service rules. Nonetheless, we note that the court held that the

employee’s action in applying for retirement benefits did not forsake any of his rights

under the MOU. We also note that the MOU, much like the rules we examine in the

present case, did not address whether separation from employment cut off a retired or

resigned employee from his or her right to complete an administrative challenge to a

disciplinary action. Both simply used the term “employee,” from which term the county

in SEIU unsuccessfully argued for the exclusion of persons who retired after initiating a

challenge to disciplinary action.

        An update of the case law since briefing concluded in this case shows only two

cases, both of which specifically concern the Los Angeles County civil service rules and,

not surprisingly, cite extensively to Zuniga and DHS. We cite them more as an act of

thoroughness than for any additional light they shed on the issue we must decide here. In

Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392, the appellate court’s



[footnote continued from previous page]
the Hall-Villareal court places the burden on the local government body to show that the
board loses jurisdiction of a properly brought appeal, rather than on the employee to
show that the board retains jurisdiction—especially given that the civil service rules in
that case, as in the case at bar, do not address, at all, what happens to an ongoing appeal
when the employee resigns or retires.


                                             14
ruling that a sheriff’s deputy’s disability retirement did not divest the civil service

commission of authority to review her unjustified discharge and to order her employment

restored, was based on very specific factual grounds. The appellate court found that the

deputy could not be deemed to have “established her intention to forever sever her

employment status . . . or to forfeit her pending Civil Service Commission appeal” in the

event she prevailed in challenging her discharge. This is because, in part, the deputy’s

disability was initiated by the county, not by her, was statutorily mandated by section

31725 without regard to her intentions, and the deputy could potentially be reinstated

from disability retirement if her medical condition—a knee injury—improved. (Hudson

v. County of Los Angeles, supra, at pp. 413-414.) Similarly, a County employee can

potentially be reinstated from disability retirement if the medical condition improves, as

provided in rule VII, sections 9 and 10 of the Personnel Rules.

       In Monsivaiz v. Los Angeles County Civil Service Com. (2015) 236 Cal.App.4th

236, the appellate court found the civil service commission lost jurisdiction over the

employee’s claim for back pay and reinstatement when he died, because it had such

jurisdiction only in connection with the restoration of an employee to service. The court

made this ruling in connection with the surviving spouse’s motion seeking to be named

the legal successor in interest of her husband who had died during the pendency of a writ

proceeding against the county. The court cited both Zuniga and DHS for a narrow view

of the civil service commission’s jurisdiction, and stressed that the death of a former

employee, even more than a retirement or resignation, prevents restoration of



                                              15
employment with the county. (Monsivaiz v. Los Angeles County Civil Service Com.,

supra, at p. 241.)

       Keeping in mind the case law in other appellate districts, we return to examining

the Personnel Rules at issue here. As stated above, the Personnel Rules do not provide

that the CSC’s jurisdiction over the appeal of an adverse personnel action, once triggered

by an employee’s proper invocation of his right to appeal, is withdrawn when the

employee leaves employment. Such a provision could easily have been included in these

very detailed Personnel Rules. That point is central to this decision.

       We also examine the practical effect of the County’s proffered interpretation. An

administrative appeal can stretch over a long period of time. In this case, the County

served Hughes with the allegations of misconduct in September 2009, and an

administrative hearing was set for two years later. It wasn’t until June 2012, a full 33

months after Hughes was made officially aware of the allegations, that the County finally

determined he was not entitled to complete the administrative appeal he had begun much

earlier when he was healthy and able to work. As this example demonstrates, a lot can

happen to a peace officer during the long course of an administrative appeal, including

age, illness, and on-the-job injuries. It seems to us quite inequitable to require, as the trial

court explicitly did here, that an ill, injured or retirement-age employee put at risk his

well-being by continuing to work in order to see to completion his administrative appeal

of an adverse personnel action.




                                              16
       Given both the lack of any provision in the Personnel Rules that deprives the CSC

of jurisdiction over the properly initiated administrative appeal of an employee who later

resigns or retires before the appeal is concluded, and the unfairness of implying such a

rule in the absence of a specific provision, we conclude that the County here was required

to hold an administrative hearing on Hughes’s appeal. We distinguish the cases out of

the Second Appellate District interpreting the Los Angeles County rules and adopt the

applicable reasoning of the Fifth Appellate District in Hall-Villareal. If a San Bernardino

County classified employee with regular status is, at the time of filing an administrative

appeal, within the class of persons who may file an appeal, the County has failed to show

any grounds in the Personnel Rules to deny that person a hearing if he or she thereafter

resigns or retires. The County could provide such a distinction in its Personnel Rules as

long as that distinction complies with the rules of due process and equal protection, but

that distinction simply does not appear in the version of the Personnel Rules that appears

in this record.

       Because we conclude that Hughes is entitled to complete his administrative appeal

as provided in the Personnel Rules, we need not address his remaining contentions.

                                      III. DISPOSITION

   The judgment of dismissal is reversed. The matter is remanded to the trial court with

directions to enter a new order overruling the County’s demurrer.

       Costs on appeal are awarded to Hughes.

       CERTIFIED FOR PUBLICATION



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                                                              CUNNISON
                                                                                       J.
We concur:

RAMIREZ
                       P. J.
McKINSTER
                          J.




 Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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