Opinion
C079396
12-20-2016
TORAUN MCKINNEY SCHMELING, as Administrator, etc., Plaintiff and Respondent, v. STATE PERSONNEL BOARD, Defendant; DEPARTMENT OF CORRECTIONS AND REHABILITATION, Real Party in Interest and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 34-2013-80001621-CU-WM-GDS)
Real party in interest Department of Corrections and Rehabilitation (DCR) purports to appeal from a 2014 judgment overturning DCR's non-punitive termination of correctional officer Jeff Schmeling. DCR has filed a notice of appeal from the subsequent decision of the State Personnel Board (SPB) after remand from the superior court. Because the SPB decision is not an appealable order or judgment, and the time to appeal from the 2014 judgment has long since lapsed, we must dismiss the appeal.
BACKGROUND
Penal Code section 6007, subdivision (b) requires a correctional officer to be tested for tuberculosis at least once each year as a condition of continued employment. Government Code section 19585 provides for a non-punitive termination of an employee for failure to meet certain requirements for continuing employment. DCR terminated Schmeling under this provision effective June 4, 2007, for failure to provide proof of the required annual tuberculosis test.
Schmeling appealed his termination to the SPB. After various delays, the SPB adopted the decision revoking Schmeling's termination in 2012. DCR petitioned for reconsideration and the SPB granted it. Schmeling passed away on August 22, 2012. In November 2012, the SPB issued a new decision on reconsideration sustaining Schmeling's termination.
Schmeling's widow, as administrator of his estate, filed a petition for a writ of administrative mandate in the superior court to set aside the SPB decision. The court granted the petition. On July 22, 2014, the trial court entered a judgment vacating the SPB decision, and ordering the SPB to reconsider the matter and enter a new decision based on the court's interpretation of the applicable law, and remanding the matter to the SPB to address entitlement to back pay and benefits.
DCR filed a notice of appeal from this 2014 judgment. (Case No. C077222.) This court dismissed the appeal, finding the order of remand was not appealable, citing Village Trailer Park v. Santa Monica Rent Control Board (2002) 101 Cal.App.4th 1133, 1139-1140: "A remand order to an administrative body is not appealable." DCR took no further action as to the appeal. The remittitur issued April 7, 2015.
On remand to the SPB, the parties stipulated to the amounts of back pay and benefits. The SPB awarded Schmeling back pay and benefits in accordance with the stipulations.
On May 20, 2015, DCR filed a notice of appeal from "[a]n order after judgment," indicating the date of the 2014 judgment and the date of the 2015 SPB decision on remand. The notice of appeal also stated: "First Notice of Appeal filed on August 22, 2014 rejected as non-appealable order. The SPB issued a new decision on April 16, 2015. The order is now appealable." The statement of appealability in DCR's opening brief states it is a timely appeal from the superior court judgment.
Upon initial review of this appeal, we questioned the issue of appealability. We requested and received supplemental briefing from the parties on the issue.
DISCUSSION
"The right to appeal is wholly statutory." (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 (Dana Point).) "Preliminarily, therefore, we must determine whether [DCR] has appealed from an appealable order or judgment. The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.)
The parties agree the 2015 SPB decision is not an appealable order. As DCR correctly states: "The SPB's 2015 decision was not an order made after judgment subject to appeal pursuant to Code of Civil Procedure 904.1, subdivision (a)(2) because the SPB is not a court and cannot issue appealable orders."
Both parties contend the 2014 judgment was a final, appealable judgment under Code of Civil Procedure section 904.1, subdivision (a)(1). They rely on the test of a final judgment quoted in Dana Point: " ' "As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory." ' [Citation.]" (Dana Point, supra, 51 Cal.4th at p. 5.) Schmeling points out that the issue of whether a judgment granting a writ of administrative mandate and remanding to the administrative agency for further proceedings is appealable is currently pending before the California Supreme Court. (Dhillon v. John Muir Health, review granted Apr. 15, 2015, S224472.)
Regardless of whether the parties' view of the appealability of the 2014 judgment is correct and the 2014 appeal was erroneously dismissed, we now have no authority to entertain an appeal from the 2014 judgment. Once the remittitur issued in April 2015, we lost any jurisdiction conferred by the original notice of appeal. (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 10.)
The current notice of appeal was filed May 20, 2015, almost 10 months after entry of the 2014 judgment. An appeal must be taken within 60 days of the entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1)(A).) "Appellate jurisdiction to review an appealable order is dependent upon a timely notice of appeal." (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1329.) " 'In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal [citation], even to relieve against mistake, inadvertence, accident, or misfortune [citations].' " (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666.) The reason for requiring strict adherence to the statutory time limits is because the taking of the appeal is not a procedural step, but a jurisdictional one; it vests jurisdiction in the appellate court. (Ibid.) "[J]urisdiction to review the merits of an appeal can never be conferred upon an appellate court by the consent or stipulation of the parties, estoppel, or waiver." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 114.)
DCR argues fairness requires that we consider the merits of the appeal. Otherwise, DCR asserts, it has no appellate remedy. But we have no jurisdiction to consider the merits and must dismiss the appeal. We note that other avenues of relief were available to DCR after this court dismissed the appeal from the 2014 judgment. DCR could have asked this court to treat the appeal as a petition for a writ of mandate. (See Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424, 1430 [treating appeal from nonappealable remand order as a petition for a writ of mandate].) If DCR believed the dismissal was error, it could have petitioned for rehearing or sought review in the Supreme Court, as the appellant in Dhillon did. DCR could have petitioned for a writ of mandate in the superior court after the SPB's 2015 decision on remand and then appealed the resulting judgment. Not one of these things was done, and now we are without jurisdiction.
Although DCR argues that the superior court was unlikely to be receptive to such a petition, the petition would have provided the necessary procedural step to seek relief in this court. --------
DISPOSITION
The appeal is dismissed. Schmeling shall recover costs. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/_________
Duarte, J. We concur: /s/_________
Nicholson, Acting P. J. /s/_________
Murray, J.