2017-00220451-CU-PT

Dixon Police Officers Association vs. City of Dixon

Nature of Proceeding: Motion to Dismiss

Filed By: Goldstein, Nubia I.

Respondent City of Dixon’s motion to dismiss petition to confirm arbitration award is denied as moot.

Petitioner Dixon Police Officers Association’s request for judicial notice is granted.

On December 8, 2017, this Court granted Petitioner’s petition to confirm an arbitration award issued in connection with a grievance arbitration conducted by hearing officer Kamardeep Athwal with respect to a grievance filed by the DPOA against the City of Dixon on April 25, 2017. Judgment was entered on December 15, 2017.

On December 6, 2017, two days before the hearing on the petition to confirm, the City

filed a motion to dismiss the petition raising the identical arguments that the City raised in opposition to DPOA’s petition, that is, that Officer Athwal’s decision was not final and only advisory to the City Manager under the City’s personnel rules. The Court expressly rejected those arguments and held that “Officer Athwal’s June 19, 2017 decision was final and thus subject to confirmation pursuant to CCP § 1285 et seq.” and that the “petition to confirm must be granted.”

This petition has been granted and judgment entered accordingly. The motion to dismiss the petition must be denied as moot. There is nothing left for the Court to resolve.

DPOA’s request in its opposition for sanctions pursuant to CCP § 128.5 is granted. Pursuant to that section, a “trial court may order a, the party’s attorney, or both to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (CCP § 128.5(a).) “Frivolous” means “totally and completely without merit or for the sole purpose of harassing an opposing party.” (Id. § 128.5(b).) The objective standard used to evaluate section 128.7 motions applies to section

128.5. (San Diegans for Open Government v. City of San Diego (2016) 247 Cal.App.4 th 1306, 1318.) In addition, while section 128.5(f) requires that sanctions be “imposed consistently with the standards, conditions, and procedures set forth in subdivisions (c), (d), and (h) of Section 128, subdivision (c),” a “party filing a sanctions motion under section 128.5 does not need to comply with the safe harbor waiting period described in section 128.7, subdivision (c)(1).” (Id. at 1317.) Here the Court finds that sanctions are appropriate given that the entire premise of the petition to dismiss filed on December 6, 2017, was addressed in full by the Court when it granted DPOA’s petition to confirm on December 8, 2017. There is no legitimate reason for keeping this matter on calendar for hearing after the petition to confirm was granted and judgment entered accordingly. Indeed, DPOA’s counsel informed City’s counsel that DPOA would seek sanctions if the motion remained on calendar and it was forced to file an opposition. Any reasonable attorney would agree that the motion “is totally and completely without merit.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 12.)

In reply, City argues that there is no basis for sanctions because it was denied its request to consolidate the hearing on the petition to confirm the arbitration award and the instant motion to dismiss and that the instant motion raises a ground not set forth in its opposition to the DPOA’s petition. Namely, City states that it sought dismissal of DPOA’s petition pursuant to CCP § 1287.2 which requires the Court to dismiss the petition as to any person not bound by the arbitration award and not a party to the arbitration. City does not in any way try to reargue the petition or somehow maintain that the motion should be granted. Rather it states that it simply seeks a ruling on this procedural matter to maintain clarity in the record since the Court did not consolidate the two hearings. The Court rejects this argument. While City may not have cited CCP 1287.2 in its opposition to the DPOA’s petition, its opposition and the instant motion were based on the identical argument that Officer Athwal’s decision was not final and only advisory to the City Manager. There is no need for any further “clarity” in the record. Once the Court granted the petition and entered judgment, this matter was concluded and the motion to dismiss was moot. The case had been resolved entirely in DPOA’s favor. Once the petition was granted there was nothing that could be dismissed. While it may have been appropriate to file the motion to dismiss in the first instance, there was no reason to keep the matter on calendar after the Court granted DPOA’s petition and entered judgment accordingly, and thereby force DPOA to

expend time needlessly to file an opposition. Once the Court granted DPOA’s petition, the matter was fully resolved and maintenance of the [then moot] motion to dismiss became frivolous or solely intended to cause unnecessary delay.

The Court will award Plaintiffs sanctions in the amount of $900 ($300/hr x 3 hrs) pursuant to CCP § 128.5 against City. This amount constitutes the reasonable attorney’s fees incurred by DPOA in opposing the instant motion. The monetary sanction is to be paid on or before February 18, 2018. If the sanction is not paid by that date, DPOA may prepare for the Court’s signature a formal order granting the sanction, which may be enforced by a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

DPOA shall prepare a formal order for the Court’s signature pursuant to CRC 3.1312