Filed 4/24/20 Marchena v. Governing Board of the Grossmont etc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LEO MARCHENA,

Plaintiff and Appellant,

v.

GOVERNING BOARD OF THE GROSSMONT UNION HIGH SCHOOL DISTRICT et al.,

Defendants and Respondents.

D075185

(Super. Ct. No. 37-2017-00033314- CU-WM-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed.

Leo Marchena, in pro per, for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, William A. Diedrich and Amy W. Estrada, for Defendants and Respondents.

I.

INRODUCTION

On October 27, 2016, Grossmont Union High School District (the District) placed Leo Marchena, a permanent classified employee working as a district Spanish language translator and interpreter on paid administrative leave, and in early November 2016 the District sought to dismiss Marchena from employment. Marchena requested a hearing, which occurred before a hearing officer in June 2017. The hearing officer recommended the governing board of the District dismiss Marchena from employment based on a series of incidents occurring between July 2015 and October 2016. The District dismissed Marchena from employment, and Marchena filed a writ of administrative mandamus (Code Civ. Proc., § 1094.5) to set aside the board’s action. The court denied the petition and entered judgment against Marchena.

Marchena appeals the judgment, contending (1) the District failed to follow its own administrative procedures; (2) the District failed to provide progressive discipline before discharging him from employment; and (3) the hearing was unfair because Marchena did not receive additional hearings for earlier-recommended disciplinary actions. Marchena also contends the trial court failed to provide an adequate statement of decision in the matter.

We conclude that the District complied with all applicable administrative procedures and provided progressive discipline, and that substantial evidence supports the finding that Marchena received a fair hearing. We further conclude the trial court’s statement of decision was adequate. Accordingly, we will affirm.

II.

BACKGROUND AND PROCEDURAL FACTS

Marchena was hired by Grossmont Union High School District as a District Spanish translator and interpreter in 2008.

A. 2014 Letter of Reprimand

In January 2014, Marchena received a formal letter of reprimand, which commented, “Over the course of the 2012-2013 school year and continuing through the present, you have engaged in a pattern of rude and disrespectful behavior towards your co-workers and others . . . .” The letter cited four incidents from the 2012-2013 school year and additional incidents from the first part of the 2013-2014 school year. It directed Marchena to comply with five directives, and it informed him that the failure to do so would result in “further disciplinary action, up to and including a recommendation for termination from employment.” The five directives were to (1) conduct himself in an “appropriate and professional manner at all times,” minimally by treating co-workers, students, parents, and others with “fairness, respect, consideration, and dignity”; (2) perform the duties of his job description effectively and efficiently; (3) avoid retaliating in any manner against any student, parent, or co-worker who lodged a complaint against him or participated in the investigation; (4) follow reasonable directives of his supervisors; and (5) follow all rules and regulations of the District. It attached several exhibits regarding the allegations and a document labeled Administrative Regulation 4218.

Marchena’s retained counsel responded to the letter, denying and responding to allegations, and demanding the letter and the corresponding documentation be removed from Marchena’s personnel file.

An amended letter of reprimand dated March 3, 2014 (the 2014 letter of reprimand) was placed in his file. It added details, including information about verbal counseling provided in October 2012 and September 2013. Enclosed with the letter was Administrative Regulation 4218.

Marchena filed a grievance challenging the inclusion of the 2014 letter of reprimand in his personnel file. In its level three response to the grievance, the District explained: “The letter of reprimand serves as a progressive discipline document, citing incidences of misconduct which have been perpetrated against staff members with whom Mr. Marchena interacts.” The District offered to remove the letter from the personnel file, seal it and file it separately, then to destroy it two years from the original date of issuance as long as there was no subsequent incident involving similar behavior. Otherwise, the letter would be placed in the personnel file along with any additional progressive discipline documentation. Marchena declined this offer.

B. Subsequent Discipline

In January 2016, Marchena’s personal vehicle sustained damage to the windshield while he was driving between school sites for work. Marchena filed a request for reimbursement, which the District denied.

In May 2016, the District sent a notice of proposed recommendation to suspend Marchena for five days without pay, citing as causes incompetency, insubordination, and persistent discourteous treatment of the public or fellow employees. It also identified several directives listed in the 2014 letter of reprimand, along with incidents occurring from July 2015 through March 2016 which violated those directives. The letter enclosed copies of relevant Education Code sections, District Administrative Regulation 4218 and Board Policy 4219.3.

On July 12, 2016, Marchena informed his direct supervisor that because the District denied a claim for reimbursement for damage to his personal vehicle while he was driving it for work, he would no longer use his personal vehicle for District business.

Later that month, the District sent Marchena a proposed recommendation for a seven-day suspension without pay, citing the same causes as the basis for the proposed five-day suspension recommendation and supplementing it with additional incidents of rude and discourteous behavior.

In September 2016, Marchena filed a grievance with the district, alleging the requirement to use his personal vehicle as transportation to attend district meetings violated the collective bargaining agreement. After filing the grievance, he declined to attend any meeting that required him to travel using his personal vehicle. This disrupted the District’s ability to provide interpretation services. It required his direct supervisor to provide interpretation services at meetings instead of completing other aspects of her job, and at least twice meetings were canceled because translation services were needed and Marchena refused to attend.

In October 2016, the District placed Marchena on paid administrative leave and informed him that it was recommending his dismissal from employment. The notice of recommendation to dismiss and statement of charges was amended on November 3, 2016, and Marchena was also notified the governing board would be considering the District’s recommendation.

In response to each notice he received, Marchena denied the charges, appealed, and requested a hearing.

Throughout his administrative leave, Marchena continued to appeal grievance decisions regarding the use of his personal vehicle for transportation to work-related meetings. On January 13, 2017, the District provided a formal response to the level III grievance appeal, stating the grievance was untimely and failed to assert facts showing a violation of the collective bargaining agreement. Marchena did not appeal this determination.

C. Hearing

A hearing before a retained hearing officer was held on June 12, 2017 and continued to June 21, 2017. The hearing officer issued a recommended decision dated July 13, 2017, agreeing with the District’s termination recommendation. The hearing officer’s recommended decision was forwarded to Marchena, and he was informed the governing board would consider it at its August 10, 2017 meeting.

On August 10, 2017, the governing board adopted the hearing officer’s recommended decision and dismissed Marchena from employment.

D. Petition for Writ of Mandamus

Marchena filed a petition for writ of mandamus (Code Civ. Proc., § 1094.5) in the superior court, and the hearing was held August 3, 2018. Marchena requested a statement of decision, and the District prepared a proposed statement of decision at the court’s request. Marchena filed objections to the proposed statement, and the District responded. The trial court overruled Marchena’s objections and adopted the proposed statement of decision. The court entered judgment denying the petition, and this appeal timely followed.

III.

DISCUSSION

A. Standards of Review

Although a trial court reviews an adjudicatory administrative decision involving a fundamental vested right by exercising its independent judgment (Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144), we review the trial court’s decision for substantial evidence (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824). Because the trial court here exercised its independent judgment, we review the record to determine whether the trial court’s judgment is supported by substantial evidence. (County of Alameda v. Board of Retirement (1988) 46 Cal.3d 902, 910; Pasadena Unified School Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314.) We consider whether, “on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the ‘determination . . . ” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) We must affirm the trial court’s decision if there is substantial evidence to support it, even if we would have ruled differently had we presided over the proceedings below. (Id. at p. 874.) We also “resolve all conflicts and indulge all reasonable inferences in favor of the party who prevailed in the trial court.” (Wences v. City of Los Angeles (2009) 177 Cal.App.4th 305, 318.)

However, pure questions of law remain subject to our independent review. (Doe v. Westmont College (2019) 34 Cal.App.5th 622, 634; Moustafa v. Board of Registered Nursing (2018) 29 Cal.App.5th 1119, 1129.)

B. District Administrative Procedure 4218

Marchena contends that the trial court failed to include in its statement of decision a finding regarding whether the school district’s amending of charges leading to the final dismissal action complied with Administrative Regulation 4218. In connection with this assertion, Marchena further contends that the District failed to follow its own procedures in dismissing him, invalidating the discharge decision.

Marchena contends District Administrative Regulation 4218 contains the following language in paragraph 6: “At any time before an employee’s appeal is finally submitted to the Board or to a hearing officer for decision, the complainant may, with the consent of the Board or hearing officer, serve on the employee and file with the Board an amended or supplemental recommendation of personnel action. [¶] If the amended or supplemental recommendation presents new causes or allegations, the employee shall be afforded a reasonable opportunity to prepare his/her defense. Any new causes or allegations shall be deemed controverted and any objections to the amended or supplemental causes or allegation may be made orally at the hearing and shall be noted on the record.” Marchena attached this version of the regulation to his opening brief, and the administrative record shows it was attached to the 2014 letter of reprimand.

The District counters that the regulation to which Marchena refers is not one the governing board adopted, and the correct version does not contain the aforementioned language. We independently compared the two documents to determine which applies to the disciplinary proceedings at issue before us.

The version of the regulation supplied by Marchena includes on the final page what appears to be a series of dates, but no statement of issuance or adoption by the governing board. Aside from its inclusion with the 2014 letter of reprimand, it does not include any indication it is a regulation followed routinely by the District. Marchena does not direct us to any evidence that indicates it has been adopted; nor does he request judicial notice of the regulation. Moreover, language in the regulation suggests it is a template; there are “notes” throughout the document providing information about how to handle the regulation in districts incorporating merit systems and in those not incorporating merit systems, as well as how to handle collective bargaining agreements that specify different provisions for employee discipline.

In contrast, the document in the administrative record referenced by the District is labeled with the name of the school district and identifies its date of issue as October 21, 1993. This version of the regulation was enclosed with the notices of proposed recommendation to suspend without pay and the November 3, 2016 notice of recommendation to dismiss, and it does not include paragraph 6, or many of the other paragraphs included in the version supplied by Marchena. We conclude this version of District Administrative Regulation 4218 is the one that governs this matter.

District Administrative Regulation 4218 states that permanent classified employees are subject to personnel actions for cause, identifying a personnel action as suspension without pay, demotion, reduction of pay, step in class, or dismissal. It lists 10 causes for dismissal. Then it explains that “[p]rior to presentation of recommendation of involuntary demotion, suspension, or dismissal to the Board, the employee shall be notified in writing . . . .” (Italics added.) If the permanent employee demands a hearing, the governing board then arranges for the hearing, which it may conduct itself, or it may appoint one or more members or a non-board member hearing officer to hear. Within 10 working days of the hearing, a recommended decision is forwarded to the governing board, and the board then renders a decision at its earliest convenience.

The regulation further prohibits disciplinary action to be taken “for any cause which arose more than two years preceding the date of the notice of cause.”

The District did not obtain consent from the governing board to amend the charges and proposed recommendations for disciplinary actions against Marchena. The District offered testimony that there was no requirement to receive approval of amendments; the board only becomes involved in an employee matter when it takes disciplinary action, and neither the initial charges nor any amended factual charges were sent to the school board in this case. This testimony is consistent with the absence of any requirement in Administrative Regulation 4218 to seek or receive board approval before issuing charges or informing an employee that it is recommending suspension without pay or, subsequently, dismissal. Accordingly, there was no violation of his procedural rights.

Contrary to Marchena’s claim on appeal, the trial court’s statement of decision reflects this conclusion as well. The trial court explained: “[T]he District attempted to discipline [Marchena], but before discipline could be imposed, he committed other, related misconduct which resulted in changes in the recommendations for a higher level of discipline. In each case, the District issued a new set of charges, which included the prior allegations along with the new ones, and restarted Petitioner’s rights to due process. With each new set of charges, [Marchena] was offered a hearing in accord with [the District’s] procedures.” This recitation reflects the lack of a requirement for board approval to amend a proposed recommendation for disciplinary action.

The statement of decision also concluded that Marchena “failed to present any evidence that the administrative evidentiary hearing was not conducted in the manner required by law. Specifically, there is no allegation the hearing was conducted in violation of District Administrative Regulation 4218 or California Education Code section 45113, which govern hearings on disciplinary actions for permanent classified employees.” This statement further evidences the trial court’s implicit conclusion there was no requirement that District employees receive board consent to amend the charges. The trial court also explored Marchena’s claim that he did not receive due process and rejected it, explaining that Marchena “was provided ample notice of the charges against him and a full and fair opportunity to respond thereto prior to any disciplinary action being imposed. Accordingly, the Board proceeded in the manner required by law . . . .”

C. Progressive Discipline

Marchena next contends there is not substantial evidence in the record that he received progressive discipline prior to his discharge from permanent public employment. He argues the trial court’s use of the 2014 letter of reprimand and the proposed recommendations for suspension were “highly prejudicial,” and the trial court failed to state or apply relevant legal authority to support its decision.

Marchena’s argument relies on the premise that the District was required to engage in progressive discipline before terminating his employment. However, Marchena does not provide us with any information that indicates progressive discipline is a requirement under the terms of the collective bargaining agreement. As it is an appellant’s burden to provide an adequate record and to affirmatively show reversible error (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), and Marchena fails to provide evidence demonstrating a requirement to engage in progressive discipline, we treat this point as waived (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862). However, even if the District were required to demonstrate progressive discipline here before dismissing Marchena, it did so.

As a preliminary matter, Marchena appears to conflate the term “disciplinary action,” taken from section 45101, subdivision (e), with “progressive discipline,” maintaining that for progressive discipline to have occurred, there must have been a demotion, suspension, or dismissal, none of which is represented by a written reprimand. First, the cases he cites address discipline of police officers, whose disciplinary actions are governed by statewide law specific to their profession. (See Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1805 [explaining the Legislature established a Bill of Rights Act for peace officers to help ensure stable employment relations between peace officers and their employers].) Second, Marchena’s reliance on Stanton v. City of West Sacramento (1991) 226 Cal.App.3d 1438 (Stanton) for this contention is misplaced. The court in Stanton did not conclude that a written reprimand was not a form of discipline.

In Stanton a police officer discharged a weapon in violation of department rules. (Stanton, supra, 226 Cal.App.3d at p. 1440.) After an interview with a department lieutenant, the department placed a reprimand in the officer’s file, and the officer followed the appeals process outlined in the memorandum of understanding (MOU) that had been negotiated by his bargaining unit. (Ibid.) The MOU specifically addressed how to appeal a written reprimand and stated that appeals of written reprimands were excluded from the appeal procedure used for disciplinary actions. (Ibid.) On appeal, the officer argued the procedure for appealing disciplinary actions under the MOU with the city conflicted with the due process rights for public employees in Skelly v. State Personnel Board (1975) 15 Cal.3d 194 (Skelly). (Stanton, at pp. 1441-1442.) The court of appeal explained there was no authority to support the assertion that a written reprimand triggers the due process procedures detailed in Skelly. (Stanton, at p. 1442.) Skelly is implicated when the public employee will be deprived of pay or benefits; because there is no such deprivation following a written reprimand, the same due process rights do not attach. (Stanton, at p. 1442.) However, the court did not conclude a written reprimand was not a form of discipline, as Marchena suggests.

In the education employment context, the term “progressive discipline” can be provided for in collective bargaining agreements. For example, in California School Employees Assn. v. Bonita Unified School Dist. (2008) 163 Cal.App.4th 387, 392, the agreement defined “progressive discipline” as “verbal counseling, verbal warning, written warning, and letter of reprimand.”

Here the District viewed the letter of reprimand as evidence of progressive discipline, though it did not base its recommendation to dismiss Marchena on any of the incidents that prompted that letter. In discussing the placement of the letter of reprimand in Marchena’s file in response to a grievance claim, the District explained: “The letter of reprimand serves as a progressive discipline document, citing incidences of misconduct which have been perpetrated against staff members with whom Mr. Marchena interacts.” (Italics added.) The letter of reprimand directed Marchena not to refuse to translate statements, not to act rudely or unprofessionally, to perform all the duties in his job description, and to follow any and all reasonable directives from his supervisors. It warned him that failure to follow directives would result in further discipline, including a recommendation for termination. In other words, the letter of reprimand demonstrated Marchena was aware of what behavior was considered misconduct and the potential consequences of failing to correct the behavior.

The hearing officer likewise viewed the letter of reprimand as evidence of progressive discipline, repeatedly referencing it as such. The hearing officer explained the District notified Marchena that his pattern of rude and disrespectful behavior was unacceptable in 2014, yet throughout 2016, Marchena continued with similar behavior, increasing in frequency, despite notice that his conduct was unacceptable.

Additionally, even without the 2014 letter of reprimand, there is substantial evidence of progressive discipline, if it were required. The former director of human resources testified that she met with Marchena on more than one occasion in Fall 2015 regarding concerns about his behavior, as did his direct supervisor. During those meetings, she reiterated the District’s expectations, but Marchena’s behavior did not improve. His failure to improve was what prompted the initial recommendation for an unpaid suspension. In other words, Marchena’s behavior throughout 2015 and 2016 was met with verbal counseling directing him to make improvements. His failure to do so led to decision to recommend formal disciplinary action. Then, after being notified of the proposed recommendation for a five-day, unpaid suspension, Marchena did not correct or improve his behavior. The District again attempted to engage in progressive discipline by proposing a seven-day unpaid suspension, based on additional misconduct. But before the District could even address Marchena’s request for hearing, rather than follow the District’s directives to improve, Marchena engaged in additional misconduct, prompting the recommendation of dismissal.

If Marchena’s argument is that the District did not engage in progressive discipline because it did not suspend him without pay before ultimately dismissing him from employment, we find that argument unpersuasive. Although aware of the District’s concerns, Marchena repeatedly ignored verbal counseling, and he ultimately ignored proposed recommendations for progressively more severe disciplinary action, instead escalating the frequency of the misconduct. Accordingly, there is substantial evidence to support the trial court’s conclusion that Marchena’s conduct worsened in terms of his treatment of colleagues, intimidation issues, and behavior with his supervisor despite the District’s use of and attempts at progressive discipline.

D. Admission of 2014 Letter of Reprimand

Marchena next contends he did not receive a fair hearing because the 2014 letter of reprimand was admitted and considered in violation of Education Code section 45113, Administrative Regulation 4218, and Article 7 of the collective bargaining agreement (Article 7). Before proceeding with our analysis on this point, we pause here to note that because we already concluded there was substantial evidence of progressive discipline without the admission of the 2014 letter of reprimand, our finding on this issue does not impact the outcome of this case.

Section 45113, subdivision (d) provides that a district cannot take disciplinary action for a cause that arose more than two years prior to the filing of the notice of cause, subject to certain exceptions not relevant here. This statutory requirement prohibits a district from using incidents more than two years old as the grounds for dismissal, but it does not prohibit the introduction of evidence that is more than two years old when the evidence may provide context or information to support the grounds for disciplinary action. (See, e.g., Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 192 (Thornbrough).)

The first incident referenced in the statement of charges occurred October 21, 2015. Remaining incidents occurred in November 2015, January, February, March, April, May, July, August, September, and October 2016. None of these incidents, which formed the basis for Marchena’s dismissal, occurred more than two years prior to the District raising the charges. The statement of decision explains the admission of the 2014 letter of reprimand was appropriate because “[e]vidence more than two years old is admissible for the purpose of demonstrating past conduct, discipline, and ongoing behavior providing context for the present misconduct.” Accordingly, the District did not violate section 45113.

Marchena maintains that the statement of decision did not apply a legal principle to the specific facts of the case. However, the statement of decision specifically addresses the letter of reprimand, noting that the hearing officer’s ruling was consistent with applicable law. The statement of decision also references the hearing officer’s conclusion, which applied the statute to the facts of this case. We are satisfied the trial court discharged its duty in evaluating the admissibility of the letter of reprimand.

For these same reasons, we are unpersuaded that the consideration of the 2014 letter of reprimand violated District Administrative Regulation 4218. The regulation prohibits a disciplinary action to result from a cause which arose more than two years before the filing of notice. The 2014 letter of reprimand was not the basis for Marchena’s dismissal.

Finally, Marchena contends the trial court improperly applied Section 7 of the collective bargaining agreement when it allowed the introduction of the 2014 letter of reprimand into evidence. More specifically, Marchena argues the trial court erroneously failed to interpret Article 7 of the collective bargaining agreement.

The relevant portion of Article 7 states, “Derogatory materials in a personnel file may not be used in a disciplinary proceeding if they are more than two (2) years old at the time notice of proposed disciplinary action was mailed to the unit member.” The hearing officer interpreted this language to be a contractual codification of Education Code section 44031, which protects employees by ensuring they are properly apprised of derogatory information so they can respond to it. The trial court agreed with this interpretation and also concluded that disputes over the terms of the collective bargaining agreement are subject to the agreement’s grievance process, which Marchena failed to follow on this issue. Thus, the trial court adopted the hearing officer’s interpretation of the statute and offered an additional reason not to adopt Marchena’s interpretation.

Section 44031 provides in part that “[i]nformation of a derogatory nature shall not be entered into an employee’s personnel records unless and until the employee is given notice and an opportunity to review and comment on that information.” In Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703, the Supreme Court ordered the school district to reinstate a principal because the principal was never given the opportunity to review or comment on confidential memoranda that had been placed in his personnel file, and the governing board dismissed the principal using the memoranda as evidence. (Id. at pp. 708-709.) The Supreme Court explained that an employee’s personnel file serves as a permanent record of his employment; “derogatory information placed in that record may be used against the employee long after the informant becomes unavailable. Thus the statute provides the employee with the concurrent right to place on the record material in rebuttal.” (Id. at p. 713.) On appeal, the District argues it would be inappropriate for us to interpret this portion of the collective bargaining agreement because doing so would interfere with the contract between the District and Marchena, as the contract contains internal remedies that must be exhausted before resorting to the courts.

We note the entirety of Article 7 is not in the record before us. The portion presented to the hearing officer suggests the purpose of Article 7 is to codify the rights created by Education Code section 44031. For example, Education Code section 44031, subdivision (a) grants employees the right to inspect personnel records and subdivision (b) prohibits the entry of derogatory information in a personnel record unless and until the employee is given notice and an opportunity to review and comment on the information. Subdivision (b) also requires release time for the purpose of responding to such materials. Article 7 similarly requires the District to provide unit members with copies of derogatory written materials, and it allows for release time so that the unit member may prepare written responses to those derogatory materials. Education Code section 44031, subdivision (b)(4) clarifies that an employee is not entitled to review materials obtained prior to the person’s employment. Article 7 likewise limits the employee’s entitlement in that regard.

However, Article 7 has a component not contained in Education Code section 44031: “Derogatory materials in a personnel file may not be used in a disciplinary proceeding if they are more than two (2) years old at the time the notice of proposed disciplinary action was mailed to the member. A unit member may at any time request the Director of Human Resources to remove specific derogatory materials from the personnel file.” (Article 7.) Neither the hearing officer nor the trial court analyzed what it means for derogatory materials to be “used in a disciplinary action.” However, their interpretation of Article 7 as codifying Education Code section 44031 indicates that for the documents to be used in a disciplinary action, they must provide the grounds for the action or otherwise form the basis for the action. The District did not use the charges in the 2014 letter of reprimand as a basis for recommending Marchena’s dismissal. Thus, to the extent that Article 7 is codification of Education Code section 44031, it does not offer relief from inclusion of the 2014 letter of reprimand in the record here.

However, we need not draw a conclusion about the meaning of this portion of Article 7 because, as we have explained, there is substantial evidence on the record to support the district court’s conclusion that the district engaged in progressive discipline before dismissing Marchena from employment, if such action is required, even without consideration of the 2014 letter of reprimand.

E. Fair Hearing and Compliance with Code of Civil Procedure Sections 632 and 634

Marchena argues the trial court committed reversible error in its statement of decision by failing to state the pertinent rules of law and failing to apply the law to factual findings, in violation of Code of Civil Procedure sections 632 and 634. In connection with this argument, Marchena contends the trial court improperly combined the arguments from Sections E and F of his memorandum of points and authority to address them in the statement of decision. Marchena further contends he was entitled to a separate hearing on each set of charges with proposed discipline recommendations, and the District’s failure to provide separate hearings was tantamount to “moving the goalposts.” Ultimately, Marchena contends the trial court failed to explain how it reached its legal conclusion that each new set of charges issued restarted Marchena’s due process rights.

Marchena misunderstands the trial court’s obligations in providing a statement of decision. “Sections 632 and 634 of the Code of Civil Procedure have been interpreted to mean that a statement of decision is adequate if it fairly discloses the determinations as to the ultimate facts and material issues in the case.” (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) The ” ‘ultimate fact’ ” in this context is a core fact, or an essential element of a claim. (Ibid.) These facts are distinct from evidentiary facts and legal conclusions. (Ibid.) These requirements do not dictate how a statement of decision is organized; the court was free to address sections E and F together.

As Marchena recognizes in his opening brief, the trial court reached a factual conclusion regarding whether the addition of new charges against him restarted his due process rights. The statement of decision explains: “In each case, the District issued a new set of charges, which included the prior allegations along with the new ones, and restarted Petitioner’s rights to due process. With each new set of charges, Petitioner was offered a hearing in accord with Respondent’s procedures.”

Although Marchena objected to this conclusion, claiming this finding was vague and ambiguous, the trial court overruled his objections. Marchena now appears to argue the trial court’s finding on this issue is prejudicial because the court does not provide any relevant legal theory to explain its conclusion. This is not a requirement of a statement of decision. However, the statement of decision explains this conclusion, highlighting the requirements to meet due process rights and citing Thornbrough: “[A] public employee must be notified of the specific rules allegedly violated, that is, the legal grounds or causes for discipline, and also the facts alleged as to each ground.” The statement of decision also discloses how it reached its conclusion on this ultimate fact: Marchena received notice of the recommended disciplinary action, including the factual and legal basis for the recommendation; Marchena had seven months to prepare for his hearing; and Marchena was not financially disadvantaged because he continued receiving his salary and benefits during that time period.

Although Marchena cites to legal authority to support his claim, it is nonetheless unclear from his brief why he believes a single hearing that addressed all the charges against him deprived him of the right to dispute or otherwise challenge those charges. (See City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287 (Santa Maria) [appellant must supply cogent argument supported by legal analysis; court may “disregard conclusory arguments that . . . fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt”].) If anything, treating each new recommended disciplinary action as “resetting the clock” benefitted Marchena because it allowed him additional time to gather information and evidence to challenge the earlier-occurring incidents, and each time those same incidents were included in subsequent charges, it clarified the pattern of behavior the District wished Marchena to cease.

Marchena cites Frates v. Burnett (1970) 9 Cal.App.3d 63 to argue the failure to receive a hearing on each set of charges prejudiced his case, but that case is not helpful because the petitioner in Frates was notified of a dismissal decision before he was offered a hearing to dispute the charges against him. (Id. at pp. 66-67.) The Supreme Court explained that the classified employee had a statutory right to receive written charges against him and to be given the opportunity for a hearing prior to disciplinary action. (Id. at p. 69.) In contrast, Marchena was provided with the written charges against him, as well as a hearing, before any disciplinary action was taken. Although Marchena argues he was prejudiced by the lack of hearings on the lesser proposed discipline of unpaid suspensions, he does not detail what kind of prejudice he suffered by addressing all the charges and allegations in a single hearing, which occurred seven months after he received notice of the charges against him. (Santa Maria, supra, 211 Cal.App.4th at pp. 286-287 [appellate court may disregard conclusory arguments when appellant fails to disclose the reasoning by which appellant reached conclusion he wants the court to adopt].)

The trial court’s statement of decision complies with the Code of Civil Procedure, and there is substantial evidence in the record that Marchena received a fair hearing.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Respondent.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.