Wilson v. Cnty. of Orange

• Decision Date: 09 January 2013
• Docket Number: G046625
• Parties: LYLE WILSON, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

LYLE WILSON, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.

G046625

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Filed: January 9, 2013

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2011-00477697)

OPINION

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Reversed and remanded.

The Law Offices of Charles Goldwasser, Charles A. Goldwasser, David A. Goldwasser, and Theodore H. Dokko for Plaintiff and Appellant.

Liebert Cassidy Whitmore, Debra L. Bray, David A. Urban, and Stacy L. Velloff (Herberg) for Defendants and Respondents.

This appeal concerns a long and contentious dispute between Lyle Wilson and his former employer, the Orange County District Attorney's Office (the County). Wilson was discharged from his employment in 2002. After six years of litigation and legal maneuvering, a trial court entered judgment in Wilson's favor and issued a peremptory writ ordering the County to vacate his discharge from employment. The trial court determined one of the charges supporting Wilson's discharge was barred by the statute of limitations. The County did not appeal this judgment. Instead, the County amended Wilson's employment file to show he was terminated in 2002 for two non-time barred reasons.

The trial court, and a different panel of this court, concluded backdating a second discharge violated the peremptory writ. (Wilson v. Superior Court (Apr. 7, 2010, G040875) [nonpub. opn.] (hereafter Wilson I).) The backdating effectively deprived Wilson of any administrative remedies to challenge the discharge and eliminated his ability to seek backpay. We upheld the trial court's order finding the County's attempt to backdate a second discharge was null and void. (Ibid.)

Thereafter, the County vacated the 2002 discharge, reinstated Wilson with pay, but placed him on paid administrative leave. The trial court ordered the County to determine within 90 days how much Wilson was due in backpay and benefits. It also ruled any dispute as to the amount of backpay would have to be resolved in a new action.

On October 26, 2010, the County paid Wilson $97,304 for backpay and benefits. Wilson filed the underlying petition for a writ of mandate, seeking an order requiring the County to pay him an additional $1,108,782, as well as a retirement credit of 7.9 years. A few weeks later, the County discharged Wilson from his employment based on two non-time barred charges.

The trial court sustained the County's demurrer on the basis Wilson failed to allege compliance with the Government Tort Claims Act (Gov. Code, § 900 et seq.,hereafter referred to as Claims Act).¹ The court dismissed Wilson's writ petition. On appeal, Wilson asserts the Claims Act does not apply. We agree and reverse the judgment.

I

We begin our factual summary by incorporating by reference the procedural history from 2002 to 2010 as delineated in the prior appeal. As aptly summarized by a different panel of this court, "This case arises against a backdrop of political intrigue and purported cover-ups. . . . Wilson, a veteran investigator for the Orange County District Attorney's Office, was investigating Patrick DiCarlo, a personal friend and supporter of District Attorney Anthony Rackauckas, for purported violations of federal and state securities laws. Rackauckas ordered that Wilson terminate the investigation, but because he was concerned about a possible internal cover-up and the obstruction of justice, Wilson failed to comply. Furthermore, when told to turn over the DiCarlo file to his supervisor, Wilson covertly provided authentic-looking copies of the documents and a recorded interview tape and kept the originals. After the supervisor destroyed the purported originals, Wilson lied about still having file materials in his possession. As the water got hotter, he eventually leaked information about the investigation to the press. Wilson was [placed on administrative leave in 2001, and] fired in 2002 for insubordination, untruthfulness, and media policy violation." (Wilson I, supra, G040875, fn. omitted.)

A. The First Writ of Mandate Petition & Arbitration (Also Referred to as the First Action)

After being placed on administrative leave in 2001, Wilson "requested an administrative review of the matter. Wilson later filed a petition for a writ of mandate, under Code of Civil Procedure sections 1085 and 1086, requesting the County be directed to provide him with an administrative review in conformity with . . . section 3304,subdivision (b)." (Wilson I, supra, G040875.) Section 3304 describes the grievance procedure for peace officers under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq. [labor relations statute providing catalog of basic rights and protections afforded to all peace officers by public entities that employ them].)

"The Orange County Superior Court thereafter issued an order recusing the entire bench, because Rackauckas was previously a judicial officer of that court. The matter was then assigned to Judge David Yaffe of the Los Angeles County Superior Court." (Wilson I, supra, G040875.)

"On October 25, 2002, the County sent Wilson a notice of intent to discharge on the grounds of insubordination, untruthfulness, and violation of the Orange County District Attorney Media Policy. Wilson was terminated on December 30, 2002. He then filed an appeal before an arbitrator, pursuant to a memorandum of understanding [(MOU)] between the Association of Orange County Deputy Sheriffs and the County of Orange." (Wilson I, supra, G040875.)

"A March 4, 2003 minute order was entered in the writ proceedings stating that the petition was stayed unless and until amended to plead either exhaustion of administrative remedies or facts showing exhaustion was not required. On August 8, 2003, the court granted Wilson leave to file an amended supplemental petition for a writ of mandate alleging a claim pursuant to . . . sections 3305 and 3309.5."² (Wilson I, supra, G040875, fn. omitted.)

"Proceeding on another track, arbitration proceedings began before arbitrator Howard S. Block. Opening statements were made on August 25, 2003. TheCounty stated that 'pursuant to Article 10 of the applicable MOU, the issue in this case would be whether . . . Wilson was discharged by the District Attorney's office for reasonable cause. If not, to what remedy is . . . Wilson, entitled under the provisions of Article 10, Section 8 of this MOU.'" (Wilson I, supra, G040875.)

The arbitration proceedings lasted until August of the following year. "Wilson moved that the arbitration proceedings be dismissed and he be reinstated to his position because the County did not complete its investigation within the time permitted by . . . section 3304, subdivision (d). The arbitrator denied the motion in October 2004, stating: '[T]his [a]rbitrator's jurisdiction is limited to what the parties have authorized him to decide, namely, whether Mr. Wilson was discharged for reasonable cause. The parties have not authorized the [a]rbitrator to decide the statute of limitations question which arises under the [POBRA]. [Citation.]'" (Wilson I, supra, G040875, fn. omitted.) After further hearings in April and May of 2006, the arbitrator, having made no determination on the statute of limitations issue, determined in October 2006, Wilson had been fired for reasonable cause. (Wilson I, supra, G040875.)

Over one year later, on February 8, 2008, the trial court considered "Wilson's petition for a writ of mandate pursuant to Code of Civil Procedure sections 1085 and 1086. The minute order on the hearing observed that the arbitrator had determined that he did not have the authority to decide whether any of the claims against Wilson were time-barred under [section] . . . 3304, subdivision (d). In addressing that unresolved issue, the minute order stated that '[p]unitive action against Wilson for insubordination was . . . untimely under [section] . . . 3304[, subdivision] (d).' It also said that punitive action against Wilson with respect to the untruthfulness and media policy violation charges was timely. However, the order also stated: 'Because it cannot be determined from the arbitrator's decision whether he would have upheld Wilson's discharge if one of the three acts of misconduct were time-barred, Wilson is entitled to the issuance of a writ of mandate requiring his employer to vacate its order dischargingWilson and remanding the matter to respondents for such further proceedings as they determine to take, consistent with the decision of the court.'" (Wilson I, supra, G040875.)

"A March 14, 2008 judgment decreed that: '[The County] violated [section] 3304 [subdivision] (d) by taking punitive action against [Wilson] for insubordination. [The County] did not violate [section] 3304 [subdivision] (d) by taking punitive action against [Wilson] for untruthfulness and for violation of [the County's] media policy. A writ of mandate will issue commanding [the County] to vacate [its] decision discharging [Wilson] and remanding this matter to [the County] for further action consistent with this judgment.' (Capitalization omitted.)" (Wilson I, supra, G040875.)

"A peremptory writ of mandate was thereafter issued commanding the County 'to vacate [its] decision discharging [Wilson], and to take such further action as [it deems] proper, consistent with the judgment of this court.' (Capitalization omitted.) It was also ordered to file a return to the writ showing what it had done to comply." (Wilson I, supra, G040875.)

"In its return to the writ, the County disclosed that it had sent Wilson a...