Thursday, May 21, 2009

Untimely Filing Of Administrative Appeal Was Inexcusable: Recent Court of Appeal Decision

On May 13, 2009, the California Court of Appeal (Division 3) certified for publication an opinion holding that a lawyer's untimely administrative filing was inexcusable and that the superior court judge erred in allowing a belated Los Angeles County Civil Service Commission appeal in order to remedy her attorney's mistake.

The case is Munroe v. Los Angeles County Civil Service Commission (Los Angeles County Department of Public Works. It further held that the attorney's failure to comply with the appeal procedures set forth on the notice of discharge did not establish good cause for an extension of time.

The moral of this decision: make sure your administrative appeal is timely filed and filed with the right agency. If a mistake is made by the attorney and the person appealing administratively, there may not be relief from the court.

Case Background
Attorney Nejadpour was retained by Massie Munroe after she was discharged from her position as an associate civil engineer with the Los Angeles County Department of Public Works for allegedly making threatening statements about “guns” and “shooting” people in the workplace.

At a disciplinary hearing, Munroe was personally served with the notice of discharge informing her that she had a right to request a hearing before the Civil Service Commission to appeal her discharge, and that such a request had to be delivered to the Civil Service Commission within 15 business days. Attorney Nejadpour signed for its receipt.

The attorney then sent a letter to the commission 52 days later requesting an appeal hearing and claiming that he had sent timely notice to Nohemi J. Ferguson, the outside counsel who had represented Munroe’s employer at the disciplinary hearing.

Attorney Nejadpour sent a second letter to the commission about six weeks later, explaining that “[i]t simply appeared that since…Ferguson represented the LACDPW then she should be the one that would receive the notice of appeal regarding my client’s wrongful termination.”

The day after Nejadpour sent the second letter, the commission served a notice on Nejadpour and Munroe informing them that Munroe’s claim would be considered at an upcoming commission meeting. This notice stated that Munroe would be allowed to present her case if she appeared at the meeting, but attendance was not compulsory. Neither Munroe nor Nejadpour made an appearance, and the commission denied Munroe’s request for an appeal based on the untimely filing of her request.

Lower Trial Court Holding
Nejadpour then petitioned for writ relief with the Los Angeles County Superior Court. While he denied having received notice of the hearing, a proof of service was attached to the notice and the trial court found notice had been given.

The trial court also found that the commission’s decision not to consider the appeal “probably was not arbitrary, capricious or lacking in evidentiary support,” because Munroe’s appeal had not been timely and she had not sought an extension from the commission upon a showing of good cause.

But the judge determined that the belated request for an appeal provided good cause for an extension of time. As Munroe and her attorney “simply failed to read the filing instructions in the Notice of Discharge and make a timely petition for a hearing,” and based on the law’s preference for a hearing on the merits, the judge held that the commission’s decision was an abuse of discretion. Thus, the trial court judge allowed the appeal.

Court Of Appeal Reverses Trial Court And Finds Notice Of Appeal To Be Untimely
The Court of Appeal reversed the trial court and concluded that the trial court’s ruling was erroneous as a matter of law. The Court of Appeal's decision explained that Nejadpour’s letter to Ferguson did not constitute a proper filing of a notice of appeal with the commission. Given that the notice of discharge, which Nejadpour signed for, spelled out the proper procedure for him to follow, the decision further reasoned the attorney “was not warranted in believing that he could file Munroe’s request for appeal hearing with the DPW.”

The decision noted that the appeals procedure set forth in the notice of discharge was “neither complex nor obtuse,” and that Nejadpour did not offer any excuse as to why he had failed to comply with the 15-day rule other than his failure to read the instructions on the notice. The decision also explained that the attorney’s failure to discharge routine professional duties was not good cause for filing a late appeal, and that the trial court improperly substituted its judgment for that of the commission by ruling good cause had been shown.

As the notice subsequently delivered to the commission was “nearly two months late,” the Court of Appeal concluded that the commission’s denial of the appeal was not unlawful, lacking in evidentiary basis, arbitrary, or capricious.

Attorney Commentary: Administrative appeal deadlines can be unforgiving and often short. If you receive notice, an appeal is usually filling out a form or filing a short notice of appeal with stated issues in some cases. If you are unsure whether to appeal or not, simply file the appeal to preserve your right. It can always be dismissed or withdrawn at a later date when you have time to assess the merits, costs and likelihood of success. If you are not sure how to handle the appeal and are not sure if you want to pursue it, you can hire an attorney for the limited purpose of helping you draft the appeal in pro per.

As an aside, the trial court may have ruled in favor of the employee since the attorney made the mistake. Further, the attorney at issue is currently facing discipline charges based on alleged misconduct in several other cases. The State Bar filed a 35-count initiating document against the attorney in December charging Nejadpour with client trust account violations, failing to perform competently, making misrepresentations to the court, State Bar, clients and opposing counsel, and other transgressions between 2003 and 2006. The attorney has denied any wrongdoing.

Any questions or comments should be directed to: Tracy Green is a principal at Green and Associates in Los Angeles, California. They focus their practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings.


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