Opinion
E050547
09-13-2011
RIVERSIDE SHERIFFS' ASSOCIATION, Plaintiff and Respondent, v. COUNTY OF RIVERSIDE, Defendant and Appellant.
The Zappia Law Firm, Edward P. Zappia and Day B. Hadaegh for Defendant and Appellant. Hayes & Cunningham, Dennis J. Hayes and Amanda K. Hansen for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIC528930)
OPINION
APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge. Affirmed.
The Zappia Law Firm, Edward P. Zappia and Day B. Hadaegh for Defendant and Appellant.
Hayes & Cunningham, Dennis J. Hayes and Amanda K. Hansen for Plaintiff and Respondent.
The County of Riverside (County) appeals following a judgment by the trial court confirming an arbitration award made in favor of the Riverside Sheriff's Association (RSA) on behalf of a corrections officer (the deputy). The arbitrator had determined that the officer had not been terminated for good cause, ordered that he be reinstated, and ordered the County to pay all lost wages and benefits, less interim earnings, including interest. The County tendered a check for $297,138.42, but because the parties disputed the amount of lost wages, RSA petitioned the superior court to confirm the award. The trial court entered a judgment in favor of RSA in the amount of $563,843.09, plus interest, and the County appealed.
On appeal, the County claims that (1) RSA failed to exhaust administrative remedy of contractual arbitration of damages and mitigation/offset; (2) the petition to confirm the arbitrator's award was untimely; (3) the trial court erroneously deprived the County of the opportunity to present evidence of offset or mitigation of damages; (4) remand is necessary to prevent double recovery by RSA and unjust enrichment; and (5) an accord and satisfaction was reached when the corrections officer cashed the check for $297,138.42. We affirm.
The County has requested that we take judicial notice of the trial court records of the criminal conviction of the deputy corrections officer whose termination from employment was the subject of the arbitration proceedings. We deny the request because the County did not challenge the arbitrator's determination that the termination was without good cause in a timely fashion. The records of the criminal case which culminated in a negotiated plea bargain, do not have any relevance to the earlier mandamus proceeding which is the subject of the appeal. Moreover, a judgment entered on a plea of guilty may not be used as a basis for collateral estoppel because it may reflect only a compromise or a desire to avoid more penal consequences (see Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 605-606; People v. Fuentes (1986) 183 Cal.App.3d 444, 452-453; People v. Camp (1970) 10 Cal.App.3d 651, 653-654), so the criminal records are not relevant to prove the deputy sheriff committed the acts at issue in the underlying arbitration proceeding.
BACKGROUND
In 1999, the deputy was investigated by the Riverside Sheriff's Department (the Department), along with other deputies at a branch jail, for improper conduct, specifically, that he had developed an overly familiar relationship with a female inmate. The criminal investigation resulted in no action by the district attorney, but the administrative investigation resulted in the deputy's termination on grounds of dishonesty, insubordination, willful violation of regulations, and conduct adversely affecting the Department.
The deputy was a member of the RSA, which has a collective bargaining relationship with the County resulting in a memorandum of understanding (MOU) regarding the terms and conditions of employment for members employed in the law enforcement unit. The MOU covers grievance procedures (MOU, art. XI), discipline, dismissal and review (MOU, art. XII), and the disciplinary appeal process (MOU, art. XII, § 14). Pursuant to the MOU, law enforcement employees are entitled to representation by the RSA. (MOU, art. XI, § 4.)
The deputy invoked the arbitration process to challenge his termination, and the matter was submitted on the following issues: (1) Did the Department act with good cause when it terminated the deputy, effective June 1, 2000? (2) If not, what is the appropriate remedy? Testimony was adduced over three days of hearings before the neutral arbitrator, who concluded that good cause did not exist to sustain the termination. On March 17, 2007, the arbitrator made findings and an award. The arbitrator ordered rescission of the termination, reinstatement of the deputy to his former position, compensation for all lost wages and benefits, less interim earnings retroactive to his date of termination and continuing until reinstatement, including interest at the prevailing rate on his back pay, and directed that the records pertaining to the termination be sealed until they can be completely removed by law.
On June 16, 2009, more than two years after the arbitrator's award was made, RSA filed a petition to confirm the contractual arbitration award and to convert it to a judgment because of a dispute over the amount of the award. RSA sought to confirm $482,260.66 in lost wages and benefits, along with interest from the date of the award. By way of an attachment, RSA submitted documentation to support its calculation of the dollar value of the award.
On August 18, 2009, the County filed its opposition to the petition. In its formal response, the County asserted 11 affirmative defenses, including, but not limited to, defenses that: the action was barred by the statute of limitations; the petitioner lacked standing; the petition was moot; the petition was not ripe; the petition was barred by the deputy's failure to mitigate damages; recovery is barred by the California Constitution which prohibits gifts of public funds; the award is incorrect because it failed to deduct for unemployment insurance benefits or other outside earnings; and that it was incorrect because it did not reflect deduction for the deputy's failure to mitigate damages. In its reply, RSA argued that the defenses had been waived because they were not raised at the arbitration hearing.
The trial court concluded that the County's defenses had been waived by failing to raise them during the arbitration hearing, and orally granted the petition on September 17, 2009. In a separate minute order, the court determined that RSA was entitled to interest at the rate of 7 percent on the award. On November 3, 2009, the formal order granting the petition to confirm the arbitrator's award was filed, awarding lost wages in the amount of $482,260.66, plus interest at the rate of 7 percent, or $81,582.43, for a total award of $563,843.09. Judgment in that amount was filed on March 3, 2010. On March 30, 2010, the County appealed.
We treat this as a forfeiture, since a waiver is the "'"'intentional relinquishment or abandonment of a known right,'"'" whereas forfeiture is the "'"failure to make the timely assertion of a right."'" (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 522, fn. 3, and cases cited therein.)
DISCUSSION
1. RSA Exhausted All Administrative Remedies.
The County asserts that the judgment must be reversed and the award vacated because RSA failed to exhaust all administrative remedies prior to initiating the proceedings to confirm the award, pursuant to section 1285 of the Code of Civil Procedure. Specifically, the County argues that RSA failed to request that the arbitrator determine the issue of damages, thereby failing to exhaust administrative remedies. We disagree.
Code of Civil Procedure section 1285 provides that any party to an arbitration in which an award has been made may petition the court to confirm, correct, or vacate the award. A petition to confirm an arbitration award must (a) set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement, (b) set forth the names of the arbitrators, and (c) set forth or have attached a copy of the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., § 1285.4.) The prevailing party in an arbitration proceeding must petition to confirm the award in order to obtain an enforceable judgment. (Loeb v. Record (2008) 162 Cal.App.4th 431, 450.)
Submission of the issues to arbitration is the condition precedent to resorting to the courts. (Charles J. Rounds Co. v. Joint Council of Teamsters (1971) 4 Cal.3d 888, 894.) In this respect, petitions for judicial confirmation of arbitration awards (Code Civ. Proc., § 1285 et seq.) differ substantively and procedurally from petitions for extraordinary relief, by way of mandate. (Code Civ. Proc., § 1084 et seq.)
The County mistakenly refers to administrative remedies which are a jurisdictional prerequisite to the extraordinary relief of mandate. Mandamus is a remedial writ used to correct acts and decisions of administrative agencies which are in violation of the law, and for which no adequate remedy is provided. (Morgan v. City of Los Angeles Bd. of Pension Comrs. (2000) 85 Cal.App.4th 836, 843.) It may be sought against an inferior tribunal, corporation, board or person to compel the performance of an act which the law specially enjoins (Code Civ. Proc., § 1085.) Traditional mandamus is not employed to confirm the decision of an administrative agency, since, by its very nature, it seeks to compel performance of a duty imposed by law. (McCafferty v. Board of Supervisors (1969) 3 Cal.App.3d 190, 193.) Mandamus also lies to correct an abuse of discretion. (Khan v. Los Angeles City Employees' Retirement System (2010) 187 Cal.App.4th 98, 105.) Petitions for writ of mandate require exhaustion of administrative remedies before resorting to the courts. (Code Civ. Proc., § 1094.5, subd. (a); see also Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 589.)
Actions to confirm arbitration awards are not equitable proceedings seeking relief from decisions by administrative or public agencies. Proceedings to confirm arbitration awards are statutory actions to confirm the quasi-judicial decisions of an arbitrator in order to obtain an enforceable judgment. (Loeb v. Record, supra, 162 Cal.App.4th at p. 450.) By statute, the only prerequisites to a petition to confirm or correct or vacate an award are that the matter was submitted to arbitration and a decision was rendered. (Code Civ. Proc., § 1285.4.)
The County urges that RSA was obligated to submit the issue of the calculation of back pay to arbitration, and that its failure to do so precludes RSA from seeking judicial confirmation of the award, relying upon Mossman v. City of Oakdale (2009) 170 Cal.App.4th 83. However, the reviewing court in Mossman did not hold that a petition to confirm the award was barred by the failure to submit the issue of the computation of back pay to arbitration. Instead, it reaffirmed the common practice of "make-whole" remedies, stating that the unspecified nature of the award did not provide a valid ground to vacate the award, although it concluded that the award as written could not be enforced. (Id. at p. 90.) Thus, the reviewing court ordered that the matter be resubmitted to the arbitrator for further clarification of the award.
In the present case, RSA provided evidence of the amount of back wages owed to the deputy, which the County did not dispute. In support of its petition to confirm the award, RSA attached a copy of the MOU between the County and RSA showing that both parties agreed to submit controversies to arbitration, as well as a copy of the arbitrator's award and written decision, as required by statute. The petition contained all the elements of a valid petition to confirm an arbitration award. The fact that the arbitrator's award did not calculate the exact amount of lost wages and benefits payable to the deputy did not constitute a failure to exhaust administrative remedies.
2. RSA's Petition to Confirm the Arbitrator's Award Was Timely.
The County argues that RSA's petition to confirm the arbitration award was untimely because it was really a petition to correct the award and was brought more than 100 days after the arbitration award was served. We disagree.
A petition to confirm an arbitration award must be made not later than four years after the date of service of a signed copy of the award on the petitioner, although a petition to vacate an award or to correct an award, must be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner. (Code Civ. Proc., § 1288.) The petition in the instant matter was brought within the four- year limitation period and was timely.
The County argues that the petition filed by RSA in the instant matter was not really a petition to confirm, but in fact was a petition to correct the arbitration award, to which the 100-day limitation applied. However, this theory was not presented in the trial court and the County offers no authority or reference to any evidence in the record to support this assertion. The fact the petition included a dollar value of the arbitration award does not change the nature of the relief sought. It is common for arbitration awards to include "make-whole" remedies in labor cases, for the purpose of returning the aggrieved employee to the economic status quo that would exist had it not been for the employer's conduct. (Mossman v. City of Oakdale, supra, 170 Cal.App.4th at p. 89.)
Further, the fact the arbitration award was for an unspecified amount of back pay does not make the award unenforceable. As a general rule, an arbitration award requiring reinstatement and back pay, but leaving the calculation of the amount of back pay to the parties, is considered final and enforceable. (Aluminum, Brick & Glass Workers Int'l Union v. AAA Plumbing Pottery Corp. (11th Cir. 1993) 991 F.2d 1545, 1549, citing United Steelworkers v. Enterprise Wheel & Car Corp. (1960) 363 U.S. 593, 599 [80 S.Ct. 1358, 4 L.Ed.2d 1424] [enforcing arbitration award despite the fact that the amount of back pay had not yet been calculated].)
In the absence of California authority, it is appropriate to rely on federal authorities where California's statutory scheme for enforcement of arbitration agreements is similar to the federal scheme. (Mossman v. City of Oakdale, supra, 170 Cal.App.4th at p. 89.)
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The award contemplated reinstatement of the deputy to the position from which he was terminated and the payment of lost wages and benefits. The award decided the issues submitted for arbitration and the fact the arbitrator did not calculate the dollar value of the award is not a valid ground on which to vacate the award. (Mossman v. City of Oakdale, supra, 170 Cal.App.4th at pp. 89-90; see also Luster v. Collins (1993) 15 Cal.App.4th 1338, 1345.) The petition acknowledged that the amount of lost wages was in dispute, but expressly sought to confirm the award. The County did not challenge the amount claimed in the petition, and did not request that the matter be remanded to the original arbitrator for clarification of the exact dollar amount, although it could have done so. (See Mossman v. City of Oakdale, supra, 170 Cal.App.4th at pp. 91-92; see also Aluminum, Brick & Glass Workers Int'l Union v. AAA Plumbing Pottery Corp., supra, 991 F.2d at p. 1549.) The County also failed to timely request that the arbitrator compute the amount of the award. "'"[A] party may not sit idle through an arbitration proceeding and then collaterally attack the procedure on grounds not raised before the arbitrators when the result turns out to be adverse."'" (Mossman, supra, 170 Cal.App.4th at p. 93.)
The petition was a timely action to enforce the arbitration award.
3. Where the County Failed to File a Petition to Correct or Vacate the Arbitration Award Within 100 Days After the Award Was Made, the County is Barred From Asserting Such a Claim on Appeal.
The County argues that the trial court erred in denying it the opportunity to present evidence of off-set and mitigation at the hearing. The argument is grounded on the fact that the arbitration award provides for reduction of back pay by the amount of any interim earnings, and asserts the County was denied its right to present evidence on the amount of interim earnings. We disagree.
Throughout its brief, the County refers to an alleged payment of more than $297,000 pursuant to the arbitrator's award, which was not deducted from the trial court's order. But the County did not challenge the amount claimed in the petition as unpaid back pay and did not offer evidence of the partial payment as a defense. Instead, the County's pleadings referred to need to deduct amounts received as unemployment benefits. In any event, the trial court was not required to deduct any sums from its order enforcing the arbitration award because it merely converts the arbitrator's award to an enforceable judgment, and because no evidence was presented that any benefits were paid to the deputy in the proceedings below.
On appeal we must disregard any assertion of fact which is not supported by the record on appeal. (See Martin v. Bridgeport Comm. Assn., Inc. (2009) 173 Cal.App.4th 1024, 1030, fn. 5 [reviewing court will not consider evidence offered on appeal which was not before the trial court]; Truong v. Nguyen (2007) 156 Cal.App.4th 865, 882 [documents and facts not presented to the trial court and not part of the record on appeal cannot be considered]; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625 [statements of alleged fact in briefs on appeal which are not contained in the record nor called to the attention of the trial court will be disregarded on appeal].) By failing to offer evidence of a partial payment of the arbitrator's award by the County, or the deputy's receipt of any unemployment benefits or other earnings, the County has forfeited the right to raise any error relating to this evidence on appeal.
RSA argues that defenses of mitigation of damages and set off must be raised in a timely petition to correct or vacate the arbitrator's award within 100 days of service of the award. To the extent the County intended to present the mitigation or set-off evidence to modify or correct the award, the County's attempt was untimely. A party to the arbitration may seek to correct or vacate the award by petition or by response to a petition. (Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 745, citing Coordinated Construction, Inc. v. Canoga Big "A," Inc. (1965) 238 Cal.App.2d 313, 318.) The time for filing such a petition is within 100 days after the arbitration award is served on the petitioner, even when the correction or vacation of the award is sought in a response to a petition to confirm an arbitration award. (Code Civ. Proc., §§ 1288, 1288.2.)
The superior court did not improperly deprive the County of the opportunity to present evidence at the hearing where the County did not timely petition for correction of the arbitration award.
4. The Judgment Does Not Result in Unjust Enrichment Where the County Is Under a Legal Obligation to Pay Lost Wages Pursuant to the Arbitration Award.
The County argues that the judgment confirming an arbitration award in the amount requested by RSA results in unjust enrichment. We disagree.
The arbitration award expressly provided for reduction of the back pay to account for interim earnings received from other sources. The attribution of a dollar amount to the back pay awarded did not eliminate the provision in the award for the set off for interim earnings. Similarly, nothing in the award deprives the County of credit or a set off for any amounts it may have paid pursuant to the arbitrator's award.
The theory of unjust enrichment applies to prevent one party from obtaining a windfall at the expense of another in circumstances where its application will not involve a violation or frustration of law or public policy. (Broadway Foreclosure Investments, LLC v. Tarlesson (2010) 184 Cal.App.4th 931, 938.) A person who has been unjustly enriched at the expense of another is required to make restitution to the other. (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 1016, p. 1105.)
However, if the money is paid in satisfaction of an obligation actually owed, the party seeking restitution for payment of such sums (here, the County) is not entitled to recover. (1 Witkin, Summary of Cal. Law, supra, Contracts, § 1025.) The record does not establish any payments by the County, notwithstanding such assertions on appeal. Further, the arbitrator's award created a legal obligation on the part of the County to pay back wages, less any interim earnings, to RSA (and the deputy it represents). Because the County is legally obligated to pay the amount, and because the record does not show the amount has been paid, RSA (and the deputy it represents) has not been unjustly enriched.
The County did not assert an unjust enrichment theory in the trial court in its response to the petition so it has forfeited any such claim. Further, the County did not present evidence of partial payment of the award. The County has not established any double recovery or unjust enrichment.
5. There Can Be No Accord and Satisfaction Absent Evidence of a Payment.
The County argues that the trial court's order confirming the arbitration award should be vacated because the deputy's alleged act of cashing a check for $297,138.42 constituted an accord and satisfaction. We disagree. There is nothing in the record to support any inference or assertion that a check in any amount was paid to the deputy. The County did not include accord and satisfaction as an affirmative defense in its response to the petition to confirm the arbitrator's award. The County has failed to carry its burden of proving error.
DISPOSITION
The judgment is affirmed. RSA is awarded costs on appeal. (Code Civ. Proc., § 1029.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur:
McKinster
J.
Codrington
J.