United Firefighters of Los Angeles v. City of Los Angeles

• Decision Date: 06 June 1991
• Docket Number: No. B052836,B052836
• Court: California Court of Appeals Court of Appeals
• Parties: UNITED FIREFIGHTERS OF LOS ANGELES, et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, et al., Defendants and Appellants.

Page 8

283 Cal.Rptr. 8

231 Cal.App.3d 1576

UNITED FIREFIGHTERS OF LOS ANGELES, et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES, et al., Defendants and Appellants.

No. B052836.

Court of Appeal, Second District, Division 2, California.

June 6, 1991.

Review Denied Aug. 22, 1991.

James K. Hahn, Los Angeles City Atty., Frederick N. Merkin, Sr. Asst. City Atty., Arthur B. Walsh, Deputy City Atty., for appellants.

Fogel, Feldman, Ostrov, Ringler & Klevens, Lester G. Ostrov and Mia Darbonne Farber, Los Angeles, for petitioners and respondents.

NOTT, Associate Justice.

This is an appeal by appellants City of Los Angeles (City), the Los Angeles City Fire Department (Department), Donald Manning, the Department's chief engineer and general manager (Chief Engineer), and the Board of Fire Commissioners from a judgment confirming an arbitrator's award. The award directed the Chief Engineer to constitute a new board of rights to reconsider the Department's termination of Edward Salas as a firefighter. The respondent is the United Fire Fighters of Los Angeles City (UFLAC), the certified collective bargaining agent for firefighters employed by the Department. Salas is not a party to this appeal. We affirm the judgment and remand the matter to the trial court to determine whether respondent is entitled to an award of attorney's fees.

Appellants contend the trial court erred in compelling arbitration because Salas as a discharged employee had no rights under the grievance provisions contained in a Memorandum of Understanding (MOU) between respondent and City. Respondent, on the other hand, urges the claim is not cognizable on appeal because appellants failed to timely file a request to vacate the award in the trial court. Finally, respondent seeks to recover attorney's fees under the private attorney general doctrine of Code of Civil Procedure section 1021.5.

FACTS

The record reveals that for ten years the Department employed Salas as a firefighter. In March 1987, the district attorney commenced a criminal action accusing him of committing lewd acts against a child under the age of 14. Prompted by those charges, the Department in November 1987 convened a Board of Rights (Board) to consider whether Salas had violated certain rules and regulations of employment. Under article X, section 135 of City's charter, the Department cannot terminate a firefighter without first affording him a hearing before a board of rights. Other subdivisions found in section 135 set forth various procedural safeguards to ensure that the accused receives a fair hearing.

The Board found Salas guilty, and in January 1988 the Chief Engineer removed him from his position as a firefighter. In February 1988, a jury acquitted Salas of all criminal counts. The trial judge, however, refused to issue Salas a "Factual Finding of Innocence" on the ground there was reasonable cause to believe he committed the offenses.

In March 1988, Salas, pursuant to subdivision (16) of section 135, requested a second board of rights hearing based on new evidence not available at the original proceeding. ¹ The Chief Engineer rejected the demand, stating he found no good reason or cause to constitute a new board.

Salas thereafter lodged a grievance pursuant to a dispute resolution procedure contained in the then current MOU between City and UFLAC. Article 2.1 of the labor contract established a multi-level review mechanism for the resolution of employee grievances. If after pursuing this route the firefighter and management remained deadlocked, section III of the article required the parties to submit the grievance to binding arbitration. Section I defined a covered grievance as "[A]ny dispute concerning the interpretation or application of a written Memorandum of Understanding or of departmental rules and regulations governing personnel practices or working conditions. The following items are not grievable: 1. an impasse in meeting and conferring upon the terms of a proposed Memorandum of Understanding. 2. Probationary employee terminations."

The Department disallowed the grievance contending Salas as a terminated employee no longer enjoyed any rights under the MOU. On January 17, 1989, Salas and UFLAC filed a petition in superior court requesting an order to compel appellants to arbitrate whether Salas should be granted a new board of rights hearing pursuant to City's charter. Appellants opposed the petition on the ground that Salas was no longer covered by the MOU.

The trial court issued an order compelling arbitration, stating: "The Court finds the claim of the petitioner that he is an 'employee' within the meaning of the Memorandum of Understanding dated October 26, 1987 is well taken. The Court finds that the petitioner was an employee at the time of his demand for reconsideration and reconvening of a board of rights. The Court finds it was the intent of the memorandum of understanding to include discharged firefighters within the definition of 'employee' until they exhausted all of their legally possible action to obtain reinstatement."

On November 14, 1989, the arbitrator rendered his opinion. He found, among other things, that the Board denied Salas his due process right to confront his accuser and that his acquittal would be relevant to the deliberations of a reconstituted board. The arbitrator accordingly made an award directing the Chief Engineer "to constitute a new Board of Rights in accordance with the requirements of the City Charter and afford him the full spectrum of due process rights ordinarily afforded an employee under 'just cause' or 'good cause' principles to hear the charges against [Salas] without prejudice to his prayer for reinstatement, full back pay and other relief."

On June 12, 1990, UFLAC filed its petition to confirm the arbitration award. On June 19, 1990, appellants filed their response to the petition, arguing again that discharged employees did not come within the reach of the MOU. The trial court rejected the contention and confirmed the award.

DISCUSSION

I. Whether the Failure to Attempt to Vacate the Arbitration Award Bars Appellants from Arguing Salas had No Right to Lodge a Grievance under the MOU

Respondent contends the failure by appellants to timely request an order to vacate the arbitration award prohibits them from now arguing Salas lacked standing to lodge a grievance. We find the contention unavailing.

Title 9 of the Code of Civil Procedure (§ 1280, et seq.) ² establishes a statutory scheme for the enforcement of arbitration agreements and the awards made pursuant to them. Section 1281.2 provides generally that the trial court can order a recalcitrant party to an arbitration contract to submit a dispute to arbitration if the court "determines that an agreement to arbitrate the controversy exists...." However, once an award has been rendered it may be vacated for reasons enumerated in section 1286.2. One such basis, for example, occurs when "[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted...." (§ 1286.2, subd. (d).)

In the instant case, appellants chose not to file a petition to vacate the arbitration award (See § 1288) ³, and they do not contest that their response, which did seek to vacate the award, was time barred by section 1288.2. ⁴ Failure to file a timely response prevents a party from vacating an award on any of the grounds provided in section 1286.2. (Davis v. Calaway (1975) 48 Cal.App.3d 309, 311, 121 Cal.Rptr. 570; MacDonald v. San Diego State University (1980) 111 Cal.App.3d 67, 79-81, 168 Cal.Rptr. 392.)

We think it clear, however, appellants are not appealing the correctness of the award. Rather, they are attacking the authority of the trial court to compel them to submit the matter to arbitration. An order to compel arbitration is an interlocutory order which is appealable only from the judgment confirming the arbitration award, or in certain exceptional situations reviewable by writ of mandate. (§ 1294; Lesser Towers, Inc. v. Roscoe-Ajax Constr. Co. (1969) 271 Cal.App.2d 675, 693, 77 Cal.Rptr. 100; Branham v. State Farm Mut. Auto. Ins. Co. (1975) 48 Cal.App.3d 27, 32, 121 Cal.Rptr. 304; Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 353, 133 Cal.Rptr. 775.) As Professor Witkin has observed: "A party does not waive his right to attack the order by proceeding to arbitration; the order is reviewable on appeal from a judgment confirming the award. [Citations.]" (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 71 p. 95.)

We also think it important to note that because appellants had nothing new to add to their opposition to the arbitration, requiring them to make a request to vacate the award would be a needless act and a waste of judicial resources.

However, even if the statutory scheme of the arbitration law is susceptible to an interpretation supporting respondent's position, this appeal would still be properly before us.

In MacDonald v. San Diego State University, supra, 111 Cal.App.3d 67, 168 Cal.Rptr. 392, the University contended the trial court erroneously submitted to arbitration a grievance brought by MacDonald, who was the acting director of the University's study skills center. By statute and executive order, the University's "academic employees" were entitled to have certain grievances settled by arbitration. (Id. at pp. 70-71, 168 Cal.Rptr. 392.) As in our case, the University argued MacDonald lacked standing to seek arbitration because she was not within the class of persons protected by the grievance procedure. (Id. at p. 73, 168 Cal.Rptr. 392.) From the record, it was unclear whether the University had brought the issue to the attention of the trial court. (Ibid.) The appellate court stated: "Nevertheless, since the question relates to subject matter jurisdiction which may be raised initially on appeal, we consider its merits. [Citations.]" (Id. at p. 74,...