Judge Stephen I. Goorvitch, Case Number: 24STCP01099, Date: 2025-05-07 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01099, Date: 2025-05-07 Tentative Ruling

Petitioner James Masud (“Petitioner”) works for the City of Los Angeles (“Respondent” or the “City”) in the Department of Public Works, Bureau of Street Lighting (the “Bureau”). The Bureau demoted Petitioner from a Street Lighting Construction and Maintenance Superintendent II to a Superintendent I. Petitioner filed a union grievance, which was denied. Petitioner filed a request for arbitration on March 24, 2024, and then filed the instant petition for writ of mandate on April 8, 2024. Respondent opposes the petition on the grounds that Petitioner has not exhausted his administrative remedies. The court agrees and denies the petition.

Petitioner was hired by the City on February 12, 1990, and has worked for the Bureau since that date. (First Amended Petition (“FAP”) ¶ 9; Answer to FAP (“Ans.”) ¶ 9.) In 2017, Petitioner was promoted to the management position of Superintendent I. (FAP ¶ 12; Ans. ¶ 12.) In 2019, Petitioner promoted to Street Lighting Construction and Maintenance Superintendent II, which is one paygrade higher than Superintendent I. (FAP ¶ 13; Ans. ¶ 13; see AR 208.)

Starting around August 2022, Miguel Sangalang, the Director of the Bureau, expressed concerns to Petitioner about his job performance both verbally and in writing. (AR 455, 459, 206.) On December 27, 2023, Sangalang wrote an email to Petitioner stating:

As you may already have gathered, today’s FOD Superintendents meeting was lackluster. Evident to me was a lack of coordination, focus, and project management for changes to the operations of the division. None of the Superintendents seem to be understanding what the other is doing and for what purpose regarding the warehouse. Half-baked proposals are making their way to me without your review. The plans that were due nearly a month ago show no progress at all -- not even a semblance of a metric -- and the last time anyone touched the BSL warehouse one was Dec 12. This can't continue. I scheduled a meeting with you and Megan on Friday to talk about this.

Petitioner met with Sangalang on January 4, 2024, to discuss performance issues. (AR 202.) On January 9, 2024, Sangalang issued a Notice of Administrative Action to Petitioner, stating:

As previously discussed, including during our last meeting on January 4th, 2024, you have not met the performance standards required of a Street Lighting Construction and Maintenance Superintendent II serving as the head of the Field Office Division. Consequently, Personnel will initiate the administrative process to return you to a Street Lighting Construction and Maintenance Superintendent I position, which will be effective on Sunday, January 14, 2024, at the beginning of pay period 16.

The purview and responsibilities for the Superintendent I position will be forthcoming. Transition discussions will begin during our regular meetings or in supplemental meetings. In the meantime, Claudia Coronel will contact you to address any questions.

Petitioner is represented by the Los Angeles Professional Managers’ Association (the “Union”). The City and the Union executed a Memorandum of Understanding #36 (“MOU #36”) that applies to Petitioner. (AR 214-218.) As relevant to this petition, MOU # 36, Article 17 includes a grievance process intended “to mutually resolve workplace issues to the maximum extent possible within the organization.” (AR 225.)

On January 18, 2024, Petitioner initiated a grievance, alleging that his reassignment was a violation of the collective bargaining agreement, his Skelly rights, and due process. Petitioner also alleged that the reassignment was retaliatory. Petitioner requested an immediate return to his former assignment as Superintendent II with all lost wages restored. (AR 205-209.) On February 6, 2024, a Director level meeting was held to discuss Petitioner’s grievance. (AR 205.) On February 26, 2024, Senior Personnel Analyst Claudia Coronel issued a memorandum that summarized this meeting and recommended that the grievance be denied. (AR 205-207.) On March 5, 2024, Coronel issued a grievance response to Petitioner stating that the grievance was denied. (AR 208.) On March 24, 2024, Petitioner, through his Union representative, filed a request for arbitration. (AR 211.) This petition was filed shortly thereafter on April 8, 2024.

The petition is governed by Code of Civil Procedure section 1085. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848 [“ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing.”]) There are two essential requirements to the issuance of an ordinary writ of mandate under Code of Civil Procedure section 1085: (1) a clear, present, and ministerial duty on the part of the respondent, and (2) a clear, present, and beneficial right on the part of the petitioner to the performance of that duty. (California Ass’n for Health Services at Home v. Department of Health Services (2007) 148 Cal.App.4th 696, 704.) “Generally, mandamus is available to compel a public agency's performance or to correct an agency’s abuse of discretion when the action being compelled or corrected is ministerial.” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) An agency is presumed to have regularly performed its official duties. (Evid. Code § 664.) Petitioner “bears the burden of proof in a mandate proceeding brought under Code of Civil Procedure section 1085.” (California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1154.)

The court exercises its own independent judgment on questions of law arising in mandate proceedings. (See Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) The interpretation of statute or regulation is a question of law. (See State Farm Mut. Auto. Ins. Co. v. Quackenbush (1999) 77 Cal.App.4th 65, 77.) In addition, “[a] challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

Respondent argues that the court lacks jurisdiction because Petitioner has not exhausted his administrative remedies. (See Oppo. 5-7.) The court agrees.[1] Code of Civil Procedure section 1086 provides: “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc. § 1086.) “It is a general rule that the extraordinary remedy of mandate is not available when other remedies at law are adequate.” (Agosto v. Board of Trustees of Grossmont-Cuyamaca Community College Dist. (2010) 189 Cal.App.4th 330, 336.)

The burden, of course, is on the petitioner to show that he did not have such a remedy…. The question whether there is a ‘plain, speedy and adequate remedy in the ordinary course of law,’ within the meaning of the statute, is one of fact, depending upon the circumstances of each particular case, and the determination of it is a matter largely within the sound discretion of the court.

(Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 206.)

The issue of whether an adequate remedy exists is “intertwined” with the issue of exhaustion of remedies. (FlightSafety Intern., Inc. v. Los Angeles County Assessment Appeals Bd. (2023) 96 Cal.App.5th 712, 720.) “[W]hen administrative machinery exists for the resolution of differences, the courts will not act until such administrative procedures are fully utilized and exhausted. To do so would be in excess of their jurisdiction. Because the rule is jurisdictional, the doctrine is not open to judicial discretion.” (Id. at 718, citations omitted.) “The exhaustion requirement applies whether relief is sought by traditional (Code Civ. Proc., § 1085) or administrative (Code Civ. Proc., § 1094.5) mandamus.” (Eight Unnamed Physicians v. Medical Executive Com. (2007) 150 Cal.App.4th 503, 511.) “Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520.) “The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.)

Here, it is undisputed that MOU #36 applies to Petitioner, as a management employee. (See Reply 5-6; AR 203.) MOU # 36, Article 17 includes a grievance process intended “to mutually resolve workplace issues to the maximum extent possible within the organization.” (AR 225.) A grievance is defined as “a dispute concerning the interpretation or application of this written MOU, or departmental rules and regulations governing personnel practices or working conditions applicable to Unit employees.” (AR 225.) The petition concerns a dispute concerning the application of department rules and regulations governing personnel practices to Petitioner, i.e. a reassignment to a lower paygrade due to poor performance. Thus, Petitioner has a grievance within the meaning of the MOU and an administrative remedy to raise that grievance. (AR 203.)[2]

Petitioner conceded the applicability of the grievance process when he filed a grievance challenging his reassignment. (AR 203.) Specifically, on January 18, 2024, Petitioner initiated the grievance process. (AR 205-209.) On March 5, 2024, after a Director level meeting, Respondent issued a grievance response to Petitioner stating that the grievance was denied. (AR 208.) On March 24, 2024, Petitioner filed a request for arbitration, which is the final step of the MOU’s grievance process. (AR 211, 228-229.) However, there is no evidence in the administrative record, and Petitioner has cited none, showing that Petitioner completed the arbitration. Accordingly, Petitioner has not exhausted his administrative remedies and the court lacks jurisdiction over the petition. (FlightSafety Intern., Inc., supra, 96 Cal.App.5th at 718.)

Despite having the burden of proof on the issue, Petitioner did not discuss the grievance process or raise any excuses from exhaustion in his petition or opening brief. For the first time in reply, Petitioner argues that “[t]here exist exceptions to the exhaustion rule where (1) the dispute involves important questions of constitutional law and (2) the grievance-procedure is not able to afford a prompt resolution of the dispute and (3) where the grievance procedure is not capable of affording a comparable remedy.” (Reply at 5:27-6:2.) None of these arguments is persuasive.

Petitioner is incorrect that he is excused from exhausting his administrative remedies with respect to these issues. “The general rule of exhaustion forbids a judicial action when administrative remedies have not been exhausted, even as to constitutional challenges.” (Bockover v. Perko (1994) 28 Cal.App.4th 479, 486, citing Roth v. City of Los Angeles (1975) 53 Cal.App.3d 679, 688.) Petitioner cites Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235, but that case addressed a failure to exhaust judicial remedies, not administrative remedies, i.e., whether it is necessary to file a petition for writ of mandate under Code of Civil Procedure section 1094.5 before filing a claim for monetary damages (See id. at 240-242.)

Moreover, Petitioner does not provide a sufficient basis for the court to conclude that his administrative remedies are necessarily inadequate. Petitioner does not discuss the MOU’s grievance process or advance any argument that the grievance procedure does not satisfy due process. (AR 224-299.) Nor does Petitioner address the following due process protections:

· Petitioner received written notice of the reasons he was reassigned to a lower paygrade. (See AR 202.)

· Thereafter, Petitioner had the right to: (1) an informal discussion with his immediate supervisor (“Step 1”); (2) a formal discussion with “the next level manager,” which includes a discussion of “the facts,” and opportunity to “solicit information,” and a written response from the manager (“Step 2”); (3) a written grievance appeal to the general manager of the Bureau, which includes a discussion of “the facts,” and opportunity to “solicit information,” and a written response from the general manager (“Step 3”); and (4) arbitration before the Employee Relations Board (“ERB”) pursuant to the rules and procedures of the ERB (“Step 4”). (AR 227-229.)

Petitioner received notice of the reasons for his reassignment, an opportunity to “discuss the facts and solicit information” with several different managers, a written response at each step of the grievance process, and the right to arbitration. Petitioner does not explain why this process is so inadequate that he is excused from exhausting his administrative remedies. (See Jones v. Omnitrans (2004) 125 Cal.App.4th 273, 281.) To the extent Petitioner argues that the notice or his opportunity to respond were not sufficient, those issues can be raised after he exhausts his administrative remedies.

In sum, Petitioner has completed the first three steps of the grievance process, and he requested arbitration, but that process has not been completed. Because Petitioner has not exhausted his administrative remedies, the court lacks jurisdiction over the first and second causes of action for writ of mandate. Accordingly, those causes of action are denied without prejudice. The court need not reach Respondent’s remaining arguments.

Petitioner’s third cause of action seeks declaratory relief under Code of Civil Procedure section 1060. As plead, however, it is derivative of the first and second causes of action and suffers from the same failure to exhaust administrative remedies. In the alternative, Petitioner has an adequate remedy in the first and second causes of action for writ of mandate. (See General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470-471; Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324.) Accordingly, the court declines to issue a declaratory judgment.

The fourth cause of action was stayed, per the court’s order of July 17, 2024. The court hereby lifts the stay on the fourth cause of action. The court shall hold a case management conference on June 18, 2025, at 9:30 a.m. Respondent may notice any motion for judgment on the pleadings for hearing on that date.

1. The court denies the petition for writs of mandate under Code of Civil Procedure sections 1085 and 1094.5, which are the first and second causes of action. This order is without prejudice to Petitioner filing a new petition for writ of mandate after he exhausts his administrative remedies.

2. The court declines to issue a declaratory judgment under Code of Civil Procedure section 1060, which is the third cause of action.

3. The court lifts the stay on the fourth cause of action. The court shall hold a case management conference on June 18, 2025, at 9:30 a.m. Respondent may notice any motion for judgment on the pleadings for hearing on that date.

[1] The first cause of action is for ordinary mandate pursuant to Code of Civil Procedure section 1085 and the second cause of action is for administrative mandate pursuant to Code of Civil Procedure section 1094.5. Both causes of action raise the same due process issues concerning Petitioner’s alleged right to an evidentiary hearing to challenge his reassignment to a lower paygrade. The court has concluded that the petition is governed by section 1085. However, the court would reach the same result even if the petition is governed by section 1094.5.

[2] A grievance does not include “[a]ny matter for which an administrative remedy is provided before the Civil Service Commission.” (AR 225.) The Rules of the Civil Service Commission “shall not apply to reductions in pay grade or similar personnel actions caused by reassignment.” (AR 206.) Accordingly, this exception from the grievance process does not apply. Petitioner has advanced no argument to the contrary.