Pollak v. State Personnel Bd.

Decision Date15 May 2001
Citation88 Cal.App.4th 1394,107 Cal.Rptr.2d 39
CourtCalifornia Court of Appeals Court of Appeals
Parties(Cal.App. 3 Dist. 2001) EMIL POLLAK, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; STATE BOARD OF EQUALIZATION, Real Party in Interest and Respondent. C036231 THIRD APPELLATE DISTRICT (Sacramento) Filed

(Super. Ct. No. 99CS00782)

APPEAL from a judgment of the Superior Court of Sacramento County. Honorable Lloyd G. Connelly, Judge. Affirmed.

Ben Allamano for Plaintiff and Appellant.

Elise S. Rose, Chief Counsel and Bruce A. Monfross, Staff Counsel for Defendant and Respondent.

Timothy W. Boyer, Jean Ogrod and Blanca M. Breeze, for Real Party in Interest and Respondent.

CERTIFIED FOR PARTIAL PUBLICATION*

SIMS , Acting P.J.

Emil Pollak appeals from the trial court's denial of his supplemental petition for writ of administrative mandate (Code Civ. Proc., 1094.5; undesignated statutory references will be to this code) and denial of his motion for attorney's fees (Gov. Code, 800), arising from Pollak's dissatisfaction with the administrative handling by the State Personnel Board (SPB) of Pollak's challenge to discipline imposed by his employer, the State Board of Equalization (BOE).

The SPB sustained four separate disciplinary charges against Pollak and ordered that he be demoted. Pollak filed a petition for administrative mandamus in the trial court, and the court, after a review of the evidence in the administrative record, found that some of the charges should be sustained and some should not. The trial court remanded the case to the SPB to reconsider the penalty in light of the trial court's ruling that some of the charges should not be sustained. Even though the trial court had sustained various charges, Pollak did not appeal from that judgment.

On remand, the SPB took no new evidence but reduced the penalty. Pollak filed a supplemental petition for writ of mandate in the trial court, using the same action number as his original petition. He asked the trial court to re-review the record, to eliminate all charges against him, and to award him attorney's fees. The trial court refused to re-review the record to determine whether any of the original charges that the trial court had sustained should be eliminated. The trial court reasoned that if Pollak was dissatisfied with the original judgment, he should have appealed, and principles of res judicata now barred his attempt to relitigate whether the sustained charges should be eliminated. The trial court also denied his request for attorney's fees.

On appeal, Pollak contends the trial court erred in (1) determining its rulings on Pollak's original petition were final and not subject to review in the supplemental petition, (2) limiting its review to the new penalty imposed by SPB (after remand from the original petition) rather than reviewing the entire SPB decision, and (3) failing to grant attorney's fees to Pollak.

In the published portion of this opinion, we shall conclude the trial court correctly concluded Pollak could not relitigate issues that had been determined against him in the adjudication of his original petition, because Pollak was seeking a new trial on issues of fact previously adjudicated by the court, and Pollak filed no motion for new trial. In the unpublished portion of the opinion, we reject Pollak's remaining claims of error.

We shall therefore affirm the trial court in all respects.1

FACTUAL AND PROCEDURAL BACKGROUND

Pollak, who was employed by BOE as a Business Taxes Compliance Specialist, received from BOE in January 1998, a Notice of Adverse Action (Gov. Code, 19574), alleging acts and omissions (which the parties divide into four charges) constituting cause for demotion to a lower job classification with lower pay, on statutory grounds of (1) inefficiency, (2) inexcusable neglect of duty, (3) insubordination, (4) willful disobedience, and (5) other failure of good behavior under Government Code section 19572.

Charge 1 alleged Pollak agreed to arbitration of a case (the Restaurant "Z" case) pending before the bankruptcy court, without authority and without obtaining the agreement of Deputy Attorney General (DAG) Lew, who was handling the case.

Charge 2 alleged Pollak made the matters alleged in Charge 1 (the Restaurant "Z" case) worse by inappropriately contacting the debtor's attorney for his assessment of DAG Lew's reaction, obtaining court records, and directly contacting DAG Lew rather than going through channels, in an attempt to justify the inappropriate conduct alleged in Charge 1.

Charge 3 alleged Pollak failed to follow procedures when he initialed a handwritten document purporting to be an agreement reached at a mediation of a bankruptcy case (the Oil Company "S" case), after DAG Julian Standen had already left the meeting. Pollak failed to advise anyone at BOE of the agreement and cancelled the reaudit of the account.

Charge 4 alleged Pollak reduced a taxpayer's liability without consulting his supervisors and without advising the BOE unit charged with handling the account (the Gas Station "B.P." case).

The Notice of Adverse Action noted Pollak had been counseled and disciplined in 1996 and 1997 for failure to follow established policies.

The Notice of Adverse Action stated: "This action is being taken against you for the causes specified in the following subsections of Government Code section 19572:

"(c) Inefficiency

"(d) Inexcusable neglect of duty

"(e) Insubordination

"(o) Willful disobedience

"(t) Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person's employment[.]"

Pollak filed an administrative appeal with SPB.

In October 1998, the administrative law judge (ALJ) sustained all four charges (combining the first and second charges under the heading "RESTAURANT 'Z'"). The ALJ issued a proposed decision making factual findings and determining "[Pollak's] pattern of not following instructions and failing to comply with established policies and procedures, which continued despite prior counseling and corrective efforts, constituted violations of Government Code section 19572, subdivisions (c) Inefficiency; (d) Inexcusable neglect of duty; (e) Insubordination; (o) Willful disobedience; and (t) Other failure of good behavior either during or outside of duty hours which is of such a nature that it causes discredit to the appointing authority or the person's employment." The ALJ concluded that in light of the potential harm to the public service and the high likelihood of repetition, the demotion should be sustained.

SPB adopted the ALJ's proposed decision to demote Pollak.

In April 1999, Pollak filed his original petition for writ of administrative mandamus (which is not the subject of this appeal). Following a hearing, the trial court found some, but not all, of the administrative findings lacked supporting evidence. The trial court entered judgment in September 1999, denying the writ petition as to Charges 1 and 2, and portions of Charge 3 (thereby implicitly finding the evidence supported the charges), but granting the writ petition as to portions of Charge 3 and all of Charge 4. With respect to Charge 3, the trial court concluded the administrative findings were not supported by substantial evidence, except the finding that Pollak directed that the audit be canceled. With respect to Charge 4, the trial court concluded the administrative findings were not supported by substantial evidence. The hearing transcript attached to the judgment reflected the court was striking some of the most egregious matters. The judgment also determined the administrative determinations of insubordination and willful disobedience under Government Code section 19572 were inaccurate and not sustained by the findings. The trial court's written decision stated in pertinent part: "Given that based on the Court's actions herein, the Court has a real doubt that the penalty imposed would remain the same, the Court determines that the matter should be remanded to the California State Personnel Board for further action consistent with this Court's judgment, specifically reviewing the issue of the proper penalty to be imposed." The writ commanded SPB to set aside the portion of the administrative decision imposing the demotion penalty, reconsider the penalty, and prepare a new decision.

Pollak did not file an appeal from that judgment insofar as it denied in part his writ petition, thereby sustaining various charges found by the SPB. Insofar as the judgment granted in part his writ petition, Pollak filed a motion for attorney's fees under various statutes, which was not immediately heard in the trial court.

Upon remand, SPB sent Pollak and BOE a letter indicating it would reconsider the penalty and inviting the parties to submit briefs if they chose to do so, but noting neither party was required to file a brief. Only Pollak filed a supplemental brief, in which he sought to revisit all issues and urged SPB to reexamine the entire decision.

Without further hearing or taking any new evidence, SPB in November 1999 issued a new decision in which it modified the demotion to a five percent (5%) salary reduction for 12 months. SPB's new decision noted Pollak had filed a supplemental brief. SPB's new decision stated, "[t]his case is back before the Board after the Sacramento County Superior Court issued an order instructing the Board to vacate its decision, and remanded the case to the Board to consider the appropriate penalty, if any, to be imposed on [Pollak] in light of the court's dismissal of certain of the charges and legal causes of action asserted against [Pollak] by [BOE]." SPB's new decision recited the trial court's disposition of the factual "allegations" and noted dismissal of allegations which the trial court determined were not supported by the evidence.

With regard to the statutory causes for...

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