Case Name: National Association for the Advancement of Colored People, San Jose Chapter v. The City of San Jose, et al.
Case No.: 16-CV-291937

The National Association for the Advancement of Colored People, San Jose Chapter (“Petitioner”) filed a petition for writ of mandate (“Petition”) against the City of San Jose (“the City”), Richard Doyle in his official capacity as the City Attorney, and Edgardo Garcia in his official capacity as the Chief of Police (collectively “Respondents”), which “arises from the City of San Jose’s refusal to challenge a private arbitrator’s decision reinstating to active duty a police officer who was fired because he publicly threatened to do bodily harm to anyone who supports civil rights movements such as Black Lives Matter” (Petition, ¶1).

According to the allegations of the Petition, in December 2014, a police officer employed by the San Jose Police Department, namely Phillip White (“Officer White”), posted threatening messages on Twitter that were directed to supporters of protest movements intended to draw attention to racial bias by police officers. These supporters included Petitioner’s members.

The City subsequently terminated Officer White’s employment. Officer White challenged that decision by way of a private arbitration proceeding in accordance with an agreement between the Police Officer’s Association and the City. On February 2016, the arbitrator issued a decision in favor of Officer White, pursuant to which his employment must be reinstated.

Petitioner asserts that the arbitration award is contrary to public policy because it endangers public safety and erodes the public trust and confidence in the San Jose Police Department. As a party to the arbitration proceeding, the City has a right to challenge the decision as provided in Code of Civil Procedure section 1285. While the City has publicly stated that it disagrees with the arbitrator’s decision, it has nevertheless “refused to exercise its discretion to determine whether to file a petition not vacate the arbitration award.” (Petition, ¶22.)

Petitioner therefore “requests that this Court issue a writ of mandate compelling the City to exercise its discretion to determine whether to challenge the arbitrator’s award and to compel the City to file a petition to vacate the arbitration award as being contrary to public policy. (Petition, ¶23.) “The grounds for this petition are that the City has refused to exercise its discretion to determine whether to vacate the arbitration award and that there is only one reasonable exercise of discretion under the circumstances, which is to file a petition to vacate the arbitration award as being contrary to public policy.” (Petition, ¶24.)
Respondents demur to the Petition on the grounds of failure to state sufficient facts to constitute a cause of action and defect or misjoinder of parties. (See Code Civ. Proc., § 430.10, subds. (d), (e).)

With respect to the demurrer on the ground of failure to state sufficient facts, Respondents first argue that Petitioner has not identified any ministerial duty they are required to perform and is impermissibly seeking to compel the performance of a discretionary act.

The Petition is brought pursuant to Code of Civil Procedure section 1085, which provides in pertinent part that “[a] writ of mandate may be issued… to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station…” (Code Civ. Proc., § 1085, subd. (a).) To obtain such relief, “[t]he petitioner must demonstrate the public official or entity had a ministerial duty to perform[.]” (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.) “ ‘A ministerial act is an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act’s propriety or impropriety, when a given state of facts exists. … [Citation]’” (Ibid.) In contrast, “a writ of mandate is not available to control the discretion of [a] public body or official. Although a court may order a public body to exercise its discretion in the first instance when it has refused to act at all, the court will not compel the exercise of that discretion in a particular manner or to reach a particular result.” (Bldg. Indus. Ass’n v. Marin Mun. Water Dist. (1991) 235 Cal.App.3d 1641, 1645-1646; see also AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, supra, 197 Cal.App.4th 693 at pp. 700-701 & 704-705.)

Here, the Petition is predicated upon the City’s “legal right” to challenge the arbitrator’s award under Code of Civil Procedure section 1285 (Petition, ¶21), which provides that “[a]ny party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.” Section 1285, by its own terms, does not require any action by a party to an arbitration proceeding; rather, it merely permits the filing of a petition to confirm, correct or vacate an award. As such, section 1285 does not impose a duty on any party to an arbitration proceeding to file a petition thereunder, let alone a ministerial duty on a public entity or agency to perform a particular act.

Petitioner does not argue otherwise in opposition, an instead maintains that it has minimally alleged Respondents’ refusal to exercise any discretion whatsoever to determine whether to file a petition to vacate the arbitration award, and mandamus can lie to compel a public agency or official to exercise discretionary powers in some manner. As previously indicated, it is true that mandamus will lie to compel the exercise of discretion where a public agency or official has failed altogether to act in some manner. Although Petitioner does allege that Respondents have refused to exercise their discretion to determine whether to vacate the arbitrator’s award and seeks and order compelling the exercise of discretion to make such a determination (see Petition, ¶¶23-24), the Court rejects the proposition that these allegations insulate the Petition from demurrer.

At the outset of the Petition, Petitioner affirmatively alleges there has been a refusal to challenge the arbitrator’s decision and characterizes the relief sought as an order requiring Respondents “to exercise [their] discretion to not accept the reinstatement of the officer and to file a petition to vacate the arbitration award as being contrary to public policy.” (Petition, ¶1-3.) These allegations reflect that Petitioner’s aim is to obtain an order compelling Respondents to exercise its discretion in a particular manner. Consistent therewith, Petitioner goes on to allege that “there is only one reasonable exercise of discretion under the circumstances, which is to file a petition to vacate the arbitration award as being contrary to public policy.” (Petition, ¶24.) Further, Petitioner plainly requests that Respondents be compelled to file a petition to vacate the arbitration award. (Petition, ¶23 & p. 5:21-25.) Once again, a court cannot compel a public entity or official to exercise discretion in a particular way. (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, supra, 197 Cal.App.4th 693 at p. 705.)
In view of the foregoing, Petitioner’s additional allegations that Respondents have failed to actually exercise their discretion to determine whether to file a petition to vacate the arbitration award and that it seeks the issuance of a writ of mandate directing Respondents in the first instance to determine whether to challenge the arbitrator’s award are incongruous. It is readily apparent from the pleading that the overarching purpose of this action is to secure an order compelling Respondents to challenge the arbitrator’s award and Petitioner would not be satisfied with a mere directive that Respondents make a decision one way or the other as to whether they pursue such a challenge. In any event, the notion that Respondents have failed altogether to exercise their discretion to determine whether to file a petition to vacate the arbitrator’s award is flawed.

A petition to vacate an arbitration award must be filed no later than 100 days after service of the award on the petitioner. (Code Civ. Proc., § 1288.) The Petition reflects on its face that the arbitrator’s award was served on the City on or about February 8, 2016. (Petition, ¶19.) Thus, the statutory time limitation to challenge the arbitration award has not yet expired. There is consequently no legitimate basis for Petitioner’s claim that Respondents have failed to exercise their discretion to determine whether to challenge the arbitrator’s award. Thus, the allegations upon which Petitioner relies to avoid demurrer are insufficient to state an independently viable claim. (See AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, supra, 197 Cal.App.4th 693 at p. 704 [to compel a public agency to exercise its discretion in some manner requires pleading failure to act in the first instance].) The impropriety of Petitioner’s effort to base the Petition on those allegations is further highlighted by the fact that Respondents will necessarily exercise their discretion to determine whether to file a petition to vacate the arbitrator’s award by the prescribed deadline (i.e. they will either file a petition or not file a petition), such that Petitioner could never validly predicate a mandamus proceeding on Respondents failing to exercise discretion under the particular circumstances presented.

In conclusion, Petitioner failed to state sufficient facts to support a petition against Respondents for mandamus relief. To the extent Petitioner seeks the issuance of a writ of mandate compelling Respondents to exercise their discretion in the first instance to determine whether to file a petition to vacate the arbitrator’s award, Petitioner failed to adequately allege any failure to act by Respondents. To the extent Petitioner requests the issuance of a writ of mandate compelling Respondents to actually file a petition to vacate the arbitrator’s award, the action impermissibly seeks an order directing the exercise of discretion in a particular manner. The demurrer to the Petition is therefore SUSTAINED WITHOUT LEAVE TO AMEND.

After issuance of an order on this demurrer, Defendants shall submit a judgment of dismissal. The hearing on the Petition for Writ of Mandate set for April 18, 2016 is vacated.