Guillermo v. L.A. Cnty. Dep't of Health Servs.

• Decision Date: 01 December 2020
• Docket Number: B296925
• Court: California Court of Appeals Court of Appeals
• Parties: MARICELA GUILLERMO, Plaintiff and Appellant, v. LOS ANGELES COUNTY DEPARTMENT OF HEALTH SERVICES, Defendant and Respondent.

MARICELA GUILLERMO, Plaintiff and Appellant, v. LOS ANGELES COUNTY DEPARTMENT OF HEALTH SERVICES, Defendant and Respondent.

B296925

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

December 1, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BS159674)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary H. Strobel, Judge. Affirmed.

Rosen Marsili Rapp, Howard Z. Rosen, Amanda Pitrof, for Plaintiff and Appellant.

Hausman & Sosa, Jeffrey M. Hausman, Larry D. Stratton, for Defendant and Respondent.

____________________

In 2012, the Los Angeles County Department of Health Services (the Department) terminated appellant Maricela Guillermo's employment. Guillermo successfully petitioned the trial court for a writ of mandate, and the court ordered that she be reinstated and compensated pursuant to Los Angeles County Code section 6.20.100 (section 6.20.100). Guillermo was awarded back pay, which she received as a lump sum, and because of the lump-sum nature of the payment, incurred an additional tax liability of $226,862. Guillermo requested that the trial court award her a "gross-up" to neutralize the tax increase.¹ The trial court denied the motion, concluding that section 6.20.100 does not authorize such an award.

On appeal, Guillermo contends that, pursuant to section 6.20.100, the Department must compensate her for the increased tax liability she incurred through no fault of her own. The Department contends that we lack jurisdiction to hear Guillermo's appeal, but that, even if the court's order is appealable, section 6.20.100 does not authorize a gross-up award to compensate Guillermo for tax consequences overwhich it has no control (and which have changed over the years).

We agree with Guillermo that we have jurisdiction over the appeal. However, we affirm the trial court's order, because we conclude that section 6.20.100 does not permit a trial court to award a wrongfully terminated employee a gross-up payment.

FACTS AND PROCEDURAL BACKGROUND

In April 2009, the Department hired Guillermo in the position of Pharmacy Services Chief II. On September 14, 2012, the Department discharged Guillermo based on her "insubordination and refusal to follow instructions" as well as her "failure to maintain confidentiality." She appealed to the Civil Service Commission (the Commission).

After an administrative hearing, the hearing officer found that Guillermo was "'not a model, but in general, a problem as well as a problematic employee who tends to go rogue in performing her duties, nonetheless, [the Department] failed to present evidence sufficient . . . to meet [the] preponderance of the evidence [standard]' necessary to support a discharge." The hearing officer concluded that "'[w]hile the Department failed on technical grounds to support its disciplinary action of discharging [Guillermo], nevertheless it was successful in clearly establishing that [Guillermo] was an extremely difficult employee to manage[,] and . . . an out-of-control employee . . . . [T]he HearingOfficer is compelled to recommend that [Guillermo] be reinstated to employment with the Department without any back pay and not necessarily to her former position as Pharmacy Services Chief II.'" On October 7, 2015, the Commission sustained the discharge, stating: "'The Department was successful in clearly establishing that [Guillermo] was an extremely difficult employee to manage and that she marches to the beat of her own drum. The portrait of [Guillermo] as an out-of-control employee persuades the Commission to sustain the Department."

On December 22, 2015, Guillermo petitioned for writ of administrative mandate. On January 31, 2017, the court remanded the matter to the Commission to "make additional findings or clarify the findings on which it relied to reach its decision to discharge" Guillermo.

On November 29, 2017, following remand proceedings, the Commission reinstated Guillermo, and imposed a 30-day suspension.

On January 19, 2018, the trial court entered judgment granting the writ of mandate, and ordering the Department to reinstate Guillermo without loss of seniority and to compensate her pursuant to section 6.20.100, with interest thereon at a rate of 7 percent per annum from the date of her discharge, September 12, 2012, through the date of payment. The trial court further ordered the Department to provide Guillermo with "all of the fringe benefits that she would have had but for her termination until her reinstatement less the period of her 30-day suspension . . . ."

In June 2018, the Department reinstated Guillermo, and the following month, paid her $655,849.96 in back pay and $180,691.27 in interest, most of which relates to years prior to 2018.

On November 9, 2018, Guillermo filed a motion in the trial court for an order directing the Department to compensate her for the excess tax liability she incurred as the result of the lump-sum reinstatement payments. As authority to make such a compensation award, the motion relied solely on section 6.20.100, which provides: "In the event an employee is reduced, suspended and/or discharged, and upon appeal the civil service commission or a court having jurisdiction does not sustain such reduction, suspension and/or discharge, the employee shall be entitled to his base rate of salary, vacation and sick leave as if such unsustained reduction, suspension or discharge had not been invoked. However, in no event shall an employee be entitled to any salary or credit for vacation and sick leave for any period of time covered by a suspension which is sustained or for any period of time waived by an employee as a condition to the granting of a continuance of his civil service or judicial hearing." Based on the calculations of a CPA and expert in tax planning and preparation, Guillermo contended her federal and state tax liability was $226,864 greater than the amount she would have paid in each tax year had she not been discharged.

In a written order filed on February 19, 2019, the trial court denied the motion for excess tax liabilitycompensation, concluding that the "express language of the ordinance says nothing about payment of tax liability. Even as modified by the phrase 'as if such unsustained . . . discharge had not been invoked,' the terms 'base rate of salary,' 'vacation,' and 'sick leave' cannot reasonably be interpreted to include payment of tax liability."

Guillermo appealed to this court on April 15, 2019.

DISCUSSION

This Court Has Jurisdiction

The Department contends that we lack jurisdiction to hear the appeal because Guillermo's post-judgment motion seeking gross up relief neither enforced nor stayed the trial court's judgment, and she did not file her appeal until approximately 15 months after the judgment was entered. We disagree.

Code of Civil Procedure section 1097 authorizes a trial court to "make any orders necessary and proper for the complete enforcement" of a writ of mandate. It is a "'well settled rule that the court which issues a writ of mandate retains continuing jurisdiction to make any orders necessary and proper for the complete enforcement of the writ.' [Citations.]" (King v. Woods (1983) 144 Cal.App.3d 571, 578.) Code of Civil Procedure section 904.1, subdivision (a)(2), in turn, permits an appeal from an order to enforce ajudgment. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652.)

The Department relies on APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176 (APRI), which holds that a trial court loses jurisdiction to reconsider its ruling after entry of judgment. (Id. at p. 180.) APRI is inapposite. The trial court did not reconsider its ruling in this case. Guillermo's motion for relief could not have been made until the Department determined the amount of her back pay; accordingly, the motion was an effort to enforce the underlying writ of administrative mandate under Code of Civil Procedure section 1097. The trial court had jurisdiction to hear the motion, and the notice of appeal, which was filed within 60 days of the court's order, was timely. (Cal. Rules of Court, rule 8.104(a)(1)(B) & (C).) We have jurisdiction to hear the appeal.²

Section 6.20.100 Does Not Permit Gross Up Awards

Guillermo received her back salary payment from the Department in a lump sum in 2018, which pushed her into ahigher tax bracket than would have applied if she had been paid the salary over each of the years to which a particular back pay amount applied (2012 to 2018). As a result, she suffered greater tax liability than she would have if she had been paid over time as an employee. She argues that section 6.20.100 requires that she be paid as if her termination had not occurred—i.e. the Department must compensate her to cover the additional tax liability. We reject Guillermo's contention, because the plain language of the ordinance does not authorize gross up payments.

"Where, as here, an appeal from administrative mandamus proceedings presents questions of law, our review is de novo." (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 52.) We employ the same rules to interpret both statutes and ordinances. (Chaffee v. San Francisco Public Library Com. (2005) 134 Cal.App.4th 109, 114.) In construing [an ordinance], our task is to discern the drafters' intent. (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190 [statutory interpretation].) We start with the ordinance's words, "assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the [drafters] meant what [they] said, and the [ordinance's]...