64 Cal.App.5th 180
Cal. Ct. App.2021Background
- In January 2014 Officer Rudy Alarcon assisted in arresting M.V.; the hearing officer found he used excessive force (pushed a handcuffed M.V. into a patrol car injuring her nose) and used discourteous Spanish-language epithets.
- The City issued a notice of intended disciplinary action in March 2015 and terminated Alarcon in April 2015; Alarcon requested an administrative appeal.
- Hearing officer Bergeson upheld the termination based on excessive force and discourteous language, found Alarcon was untruthful in the internal investigation, but concluded the City’s notice failed to sufficiently identify dishonesty as a basis for termination and awarded Alarcon back pay.
- Alarcon filed a writ petition challenging his termination; the City filed a separate writ challenging the back-pay award. The trial court consolidated the matters and on September 24, 2019 denied both petitions.
- Alarcon timely appealed the September 24 ruling (notice filed November 7, 2019). The trial court later entered a November 21, 2019 “judgment” incorporating the September 24 ruling. The City filed a cross-appeal on January 21, 2020.
- The Court of Appeal affirmed denial of Alarcon’s petition (no abuse of discretion by the City) and dismissed the City’s cross-appeal as untimely, concluding the September 24 ruling was a final, appealable judgment and the clerk’s September 24 service triggered the appeal deadlines.
Issues
| Issue | Plaintiff's Argument (Alarcon) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether the City abused its discretion in terminating Alarcon | Termination was an abuse of discretion given alleged investigatory and procedural defects | Termination was supported by weight of evidence (excessive force, discourteous language); no abuse | No abuse of discretion; trial court affirmed |
| Whether the September 24, 2019 ruling was a final, appealable judgment | (implicit) The later November 21 judgment was the operative judgment | The September 24 ruling was final and appealable (disposed of all issues) | September 24 ruling is a final judgment for appeal-timing purposes |
| Whether the clerk’s service satisfied Rule 8.104 timing requirements | City: later November 21 notice of entry/re-judgment controlled appeal period | Alarcon: clerk served a filed-endorsed copy plus declaration of mailing on Sept. 24 satisfying Alan and triggering the 60-day clock | Clerk’s Sept. 24 service (filed-endorsed copy + declaration) satisfied Rule 8.104 and started appeal period |
| Whether the City’s cross-appeal was timely | City: cross-appeal timely because notice of entry served Nov. 22, 2019 and under Rule 8.108(g) extension it had until Jan. 21, 2020 | Alarcon: cross-appeal untimely because original appeal clock ran from Sept. 24 service and Rule 8.108(g) extension (20 days after notice of first appeal) set latest date Dec. 23, 2019 | Cross-appeal untimely and dismissed; latest permissible date was Dec. 23, 2019 |
Key Cases Cited
- Laraway v. Pasadena Unified School Dist., 98 Cal.App.4th 579 (Cal. Ct. App. 2002) (order denying writ that disposes of all issues is final and starts the appeal clock)
- Alan v. American Honda Motor Co., Inc., 40 Cal.4th 894 (Cal. 2007) (clerk may attach certificate/declaration of mailing to a filed-endorsed order to satisfy Rule 8.104 single-document mailing requirement)
- County of Siskiyou v. State Personnel Bd., 188 Cal.App.4th 1606 (Cal. Ct. App. 2010) (standard for reviewing public-employee disciplinary penalties: appellate courts do not substitute their discretion if reasonable minds may differ)
- Griset v. Fair Political Practices Com., 25 Cal.4th 688 (Cal. 2001) (appealability requires an appealable order or judgment)
- Russell v. Foglio, 160 Cal.App.4th 653 (Cal. Ct. App. 2008) (clerk’s filed-endorsed copy with date of mailing triggers the 60-day appeal period)